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2022 DIGILAW 242 (ALL)

Raj Veer v. State of U. P.

2022-02-23

SUNEET KUMAR, VIKRAM D.CHAUHAN

body2022
JUDGMENT : Suneet Kumar, J. 1. Heard Sri Bharat Singh, learned counsel for the appellant, learned AGA for the State and perused the lower court record with the assistance of learned counsels. 2. This criminal appeal has been filed against the judgment and order dated 6.9.2002 passed by Additional Sessions Judge IV, Moradabad in S.T. No.184 of 2002 (State Vs. Rajveer), under sections 452 and 376 IPC, P.S. Hayat Nagar, District Moradabad, whereby, the appellant has been convicted and sentenced under section 452 IPC with one year rigorous imprisonment and fine of Rs.5,000/- and convicted and sentenced under Section 376 IPC with life imprisonment and fine of Rs.10,000/-. In case of default in payment of fine, additional simple imprisonment for a period of two years. 3. As per prosecution case, husband of the victim i.e. Sukhram lodged a report on 31.3.2001 at 12:10 p.m. alleging that on 30.3.2001 at about 11:00 p.m. in the night, appellant taking advantage that his wife was alone in the house, committed offence of rape. It was further alleged that the appellant is neighbour and earlier in the morning of the day of incident, he had quarrel with the appellant over a drain. On fear of the appellant, he left the village and had gone to his cousin's place in another village. 4. After investigation, police report/charge sheet came to be filed under Section 376 IPC against the appellant. The appellant was summoned to stand trial on charges under Sections 376 and 452 IPC. 5. The prosecution to prove the charge, examined in all five witnesses. Three witnesses of fact and two formal witnesses. Sukhram, informant/husband of the victim (PW-1), victim (PW-2), Noshe (PW-3) an independent witness/neighbour of the complainant, Constable Harendra Singh (PW-4) who proved the Chik F.I.R. and G.D. Entry and Dr. Aruna Pal (PW-5) proved the medical examination report and pathology report. 6. Sukhram (PW-1), the complainant stated that he is aged about 28 years and a labour. On the day of the incident at about 10:00 a.m., a brawl ensued between him and the accused-appellant over a drain and the flowing water, which the accused had obstructed. He further deposed that out of fear of the accused, he left the village and went to neighbouring village, at his cousin's house. On the day of the incident at about 10:00 a.m., a brawl ensued between him and the accused-appellant over a drain and the flowing water, which the accused had obstructed. He further deposed that out of fear of the accused, he left the village and went to neighbouring village, at his cousin's house. On returning to his village on the following day, his wife (victim) informed that at about 11:00 p.m. on the previous night; accused entered the house after opening the latch (kundi) and committed the offence of rape. He further stated that victim informed him that on hearing her scream neighbours, Noshe Ali and Shamim, came on the spot and saw the accused escaping from the premises. He further stated that he had taken his wife to the Thana and report came to be lodged on a written complaint, reduced in writing at his home. 7. He identified his thumb impression on the complaint (Exhibit Ka-1). He further stated that the clothes of the victim was taken, recovery memo was drawn, on which his thumb impression was taken (Exhibit Ka-2). In cross examination, he stated that Maluki Pradhan, and Hari Singh had not accompanied him to the court, but they met him within the premises of the court. He further stated that Maluki Pradhan, and Hari Singh are facing trial for murder of the brother of the accused. He further stated that the house of the accused is adjacent to his house, as well as, one of his (appellant) house is opposite to his house. There is a drain between the house of the complainant and that of the accused. The drain vests in gram panchayat and is not owned by either of the parties. He further stated that at 6:00 in the evening, he left the village on foot to the neighbouring village to his cousin's house. He further deposed that with regard to the dispute of the drain, he had not given any written complaint. He returned to the village at 7:00 in the morning on the following day, it is then his wife informed him of the incident that had occurred at 11:00 p.m. in the night. He further deposed that with regard to the dispute of the drain, he had not given any written complaint. He returned to the village at 7:00 in the morning on the following day, it is then his wife informed him of the incident that had occurred at 11:00 p.m. in the night. He further stated that in the afternoon of the incident he met Maluki Pradhan, and denied that a false case was lodged at the behest of Maluki Pradhan and that Noshe Ali (PW-3) falsely testified, as he had transferred his house to him. He further stated that the police had visited his house on the day, on which the complaint was lodged and after two days, police inspected the site. 8. Victim (PW-2) in her examination-in-chief stated that at the time of incident she was residing at the village and after the incident, she left the village out of fear of the accused-assailant. She further stated that her husband left the village due to fear as on the said date, a brawl with regard to a drain had taken place between the accused and her husband. At the time of incident she was alone in the house; the accused barged into her house and pushed her down, thereafter, committed the offence of rape. She further stated that the accused had pressed her mouth with his hand so she could not scream. On opportunity she screamed, her neighbour, Noshe Ali (PW-3) and Shamim came; accused escaped from the room; she identified the accused in the light of lamp. 9. In cross examination, victim deposed that accused has a house opposite to her house, as well as, adjacent to her house; two adjacent houses are separated by a narrow lane, where only human being can pass through; the drain between two houses was a bone of contention between her husband and the accused. She further stated that accused had obstructed the drain by putting mud, earlier in the morning, thereafter, he abused her husband and also beat him, as well as, her. She further stated that she did not incur any injury. She stated that she did not complain of the incident to Maluki Pradhan of the village and had not informed any other villager. She further stated that her husband had left the house after the incident out of fear. She out of fear kept quite. She further stated that she did not incur any injury. She stated that she did not complain of the incident to Maluki Pradhan of the village and had not informed any other villager. She further stated that her husband had left the house after the incident out of fear. She out of fear kept quite. While she was sleeping, the door of the house was bolted with latch. She further deposed that the face of the assailant was not covered by any cloth and on her scream, neighbour, including, Noshe Ali (PW-3) reached the spot. 10. Noshe Ali (PW-3) in his statement deposed that the complainant and his wife are resident of the village; he is immediate neighbour; incident is of 11:00 p.m. and on hearing scream of the victim, he reached the spot and on seeing him, accused escaped from the spot. He saw the victim half clad and the victim informed him of the incident and the offence committed by the accused. He further stated that no other person was present in the house. In cross examination, he deposed that earlier he had submitted an affidavit in the court of Chief Judicial Magistrate. He identified and proved the affidavit. He further stated that he visited the house of the victim on hearing her scream and saw the accused escaping from the house of the victim. He further stated that accused was wearing nikkar and dhoti and his dhoti was open. He further stated that he had seen the victim at her house/kotha. He identified the accused in torch light. He further stated that his son had purchased the house of the complainant/victim. On suggestion, he denied that due to this reason he is giving false statement. 11. Clerk Constable Harendra Singh (PW-4) proved the documentary evidence, the F.I.R. and G.D. entry being Exhibit Ka-3 and Exhibit Ka-4. In cross examination, PW-4 stated that he asked the complainant about the scribe of the report, but, complainant did not tell the name of the scribe; complainant had come to police station with a written complaint. He further stated that on the written complaint, thumb impression of the complainant was already made. 12. Dr. Aruna Pal (PW-5) stated that on 31.3.2001, at about 5:45 p.m., she examined the victim; she was brought by constable Bhupendra Chaubey. He further stated that on the written complaint, thumb impression of the complainant was already made. 12. Dr. Aruna Pal (PW-5) stated that on 31.3.2001, at about 5:45 p.m., she examined the victim; she was brought by constable Bhupendra Chaubey. She proved the medical examination report and the pathology report, wherein, it is noted that on general examination there was no mark of injury over her body. On internal examination, it is noted that there is no mark of injury over private parts. Vagina admits two fingers easily. Uterus and cervix normal. No bleeding was present. Vaginal smear taken and sent for histopathology. Medical Expert opined that no definite opinion about rape can be given. On a suggestion, PW-5 stated that it is wrong to say that the offence of rape was not committed merely in absence of spermatozoa. 13. The accused on being confronted with the prosecution evidence and the incriminating circumstance, in statement under Section 313 Cr.P.C. denied the charge and stated that he has been falsely implicated due to enmity; the prosecution witnesses have given false statements. On specific query as to whether accused wants to say anything in defence, he declined. 14. It is submitted by learned counsel for the appellant that witnesses of fact PW-1, PW-2 and PW-3 have been implanted at the behest of Maluki, Pradhan of village and Hari Singh for the reason that brother of the appellant was murdered by Maluki Pradhan and Hari Singh. It is urged that witnesses of fact were won over by them. This fact is also substantiated by the statement of PW-1 that after the dispute and brawl with regard to the drain, he visited the Pradhan and informed him in the afternoon. It is further submitted that the testimony of PW-3, the independent witness cannot be relied upon, as he is beneficiary of having purchased the house of the complainant/victim. 15. It is further submitted that as per testimony of PW-2 she stated that after commission of offence, accused left the Kotha, thereafter, she screamed, on hearing her scream neighbours came. In other words, it is submitted that the testimony of the independent witness PW-3 cannot be relied upon/believed, as it is in contradiction to the statement of the victim that the accused had left the site of incident. In other words, it is submitted that the testimony of the independent witness PW-3 cannot be relied upon/believed, as it is in contradiction to the statement of the victim that the accused had left the site of incident. It is further submitted that as per medical examination report and medical expert opinion, the incident of rape is not corroborated. There is no internal/external injury, nor, spermatozoa was found. 16. Finally, it is submitted that appellant is having no previous criminal history; throughout trial he was on bail; thereafter, on conviction, he was enlarged on bail by this Court on 11.9.2002. It is urged that the accused has not misused his liberty, nor, indulged in any other criminal activity. In the circumstances, it is urged that maximum quantum of sentence imposed by the trial court is excessive. Having due regard to the conduct of accused-appellant, a lessor sentence would suffice. 17. The fact in issue to be determined is as to whether the prosecution was able to prove the incriminating circumstance connecting the accused-appellant with the commission of the offence of rape. As per prosecution case, complainant, husband of the victim, reported that the accused-appellant had committed the offence in his absence taking advantage that his wife was alone at the house. He further stated that out of fear, he left the village as he was threatened by the accused over a dispute of a drain. On returning to the village on the subsequent day at 7:00 a.m., victim informed him about the incident. The victim in her statement clearly identified the accused of having committed the offence taking advantage that she was alone at the house and further on hearing her scream, neighbours rushed and they had identified the accused. PW-3, a next door neighbour, clearly stated that he had seen the accused leaving the door of the house of the victim at the relevant time of the incident, he reached the house of the victim on hearing her scream. He further stated that he had seen that victim was half clad and weeping; while accused escaped, he was wearing nikkar and dhoti, which was open and his eyes was red. The testimony of PW-2 and PW-3 prove the commission of the offence and presence of the accused at the relevant time at the site beyond reasonable doubt. 18. He further stated that he had seen that victim was half clad and weeping; while accused escaped, he was wearing nikkar and dhoti, which was open and his eyes was red. The testimony of PW-2 and PW-3 prove the commission of the offence and presence of the accused at the relevant time at the site beyond reasonable doubt. 18. The site-map shows both houses of the accused, one across the road and one adjacent to the house of the victim. In between the adjacent houses, a narrow lane and drain has been shown. On the other side of the victim's house, house of PW-3 has been shown. The place of the incident has also been shown in the site plan. The site-plan corroborates the testimonies of PW-1, PW-2 and PW-3. The medical examination report alone is not sufficient to demolish the testimony of the victim and the independent witness PW-3. Further, victim (PW-2) deposed that out of fear, her husband left the village and after the incident they sold the house and left the village permanently. 19. On the day of cross examination, PW-1 admitted that Maluki Singh and Hari Singh were present in the court premises. In this backdrop, it is urged that the testimony of PW-1 and PW-2 is not trustworthy and reliable. The witnesses were won over by Pradhan to settle scores with the accused. 20. The questions arising for consideration before us are: whether the prosecution story, as alleged, inspires confidence of the court on the evidence adduced? Whether the prosecutrix, is a witness worthy of reliance? Whether the testimony of a prosecutrix who has been in victim of rape stands in need of corroboration and, if so, whether such corroboration is available in the facts of the present case? Whether she was a consenting party to the crime? 21. At the outset the testimony of the prosecutrix cannot be doubted merely for the reason that her husband met the Pradhan and Hari Singh and that they were present in the court premises on the date of examination of PW-1. The defence has not produced any evidence or material to substantiate that the witnesses of fact have been implanted. The doubt has to be a reasonable doubt and not on excuse for acquittal. 22. In State of Rajasthan v. N.K. The Accused, (2000) 5 SCC 30 , Supreme Court has held : "9. The defence has not produced any evidence or material to substantiate that the witnesses of fact have been implanted. The doubt has to be a reasonable doubt and not on excuse for acquittal. 22. In State of Rajasthan v. N.K. The Accused, (2000) 5 SCC 30 , Supreme Court has held : "9. ...A doubt, as understood in criminal jurisprudence, has to be a reasonable doubt and not an excuse for a finding in favour of acquittal. An unmerited acquittal encourages wolves in the society being on the prowl for easy prey, more so when the victims of crime are helpless females. The courts have to display a greater sense of responsibility and to be more sensitive while dealing with charges of sexual assault on women......In State of Punjab v. Gurmeet Singh, (1996) 2 SCC 384 , "[A] rapist not only violates the victim's privacy and personal integrity, but inevitably causes serious psychological as well as physical harm in the process. Rape is not merely a physical assault- it is often destructive of the whole personality of the victim. A murderer destroys the physical body of his victim, a rapist degrades the very should of the helpless female. The courts, therefore, shoulder a great responsibility while trying an accused on charges of rape. The must deal with such cases with utmost sensitivity. The courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case." 23. The contention of learned counsel for the appellant on close scrutiny would not demolish the prosecution case. PW-1 meeting the village Pradhan (Maluki) in the afternoon after the dispute/brawl over the drain is a natural behaviour, PW-1 probably met the Pradhan either to intervene or settle the dispute between the neighbours. That would certainly not mean that witnesses were won over. The presence of the Pradhan in the court premises on the day of the testimony of PW-1 also does not show that PW-1/PW-2 were influenced in falsely implicating the accused. It can be a co-incidence or an assurance to the PW-1 that the accused or any person on his behalf would not harm PW-1 in the court. The presence of the Pradhan in the court premises on the day of the testimony of PW-1 also does not show that PW-1/PW-2 were influenced in falsely implicating the accused. It can be a co-incidence or an assurance to the PW-1 that the accused or any person on his behalf would not harm PW-1 in the court. PW-1 and PW-2 categorically stated that PW-1 left the village out of fear of the accused and PW-2 stated that after the incident, fear and humiliation compelled them to sell their house and permanently leave the village. 24. The prosecution case must stand on it legs to bring home the charge beyond reasonable doubt. The prosecution case stands proved on the sterling, credible and trustworthy testimony of the victim duly corroborated by PW-1 and the independent witness PW-3. The presence of the accused was duly proved by PW-3 immediately after the incident. 25. In State of Orissa v. Thakara Besra, (2002) 9 SCC 86 , Supreme Court held that rape is not mere physical assault, rather it often distracts (sic destroys) the whole personality of the victim. The rapist degrades the very soul of the helpless female and, therefore, the testimony of the prosecutrix must be appreciated in the background of the entire case and in such cases, non examination even of other witnesses may not be a serious infirmity in the prosecution case, particularly where the witnesses had not seen the commission of the offence. 26. In State of H.P. v. Raghubir Singh, (1993) 2 SCC 622 , Supreme Court held that there is no legal compulsion to look for any other evidence to corroborate the evidence of the prosecutrix before recording an order of conviction. Evidence has to be weighed and not counted. Conviction can be recorded on the sole testimony of the prosecutrix, if her evidence inspires confidence and there is absence of circumstances which militate against her veracity. A similar view has been reiterated in Wahid Khan v. State of M.P., (2010) 2 SCC 9 , placing reliance on an earlier judgment in Rameshwar v. State of Rajasthan, AIR 1952 SC 54 . 27. Thus, the law that emerges on the issue that the statement of the prosecutrix, if found to be worthy of credence and reliable, requires no corroboration. The court can record conviction of the accused on the sole testimony of the prosecutrix. 28. 27. Thus, the law that emerges on the issue that the statement of the prosecutrix, if found to be worthy of credence and reliable, requires no corroboration. The court can record conviction of the accused on the sole testimony of the prosecutrix. 28. Who can be said to be a "sterling witness", has been dealt with and considered in Rai Sandeep v. State (NCT of Delhi), (2012) 8 SCC 21 . In para 22, it is observed and held as under : "22. In our considered opinion, the "sterling witness" should be of a very high quality and calibre whose version should, therefore, be unassailable. The court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross-examination of any length and howsoever strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as the sequence of it. Such a version should have correlation with each and every one of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all other such similar tests to be applied, can it be held that such a witness can be called as a "sterling witness" whose version can be accepted by the court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged." 29. If the evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations or sexual assaults. [See State of Punjab v. Gurmit Singh, (1996) 2 SCC 384 ]. 30. It is settled legal position that the evidence of rape victim stands at par with the evidence of an injured witness. Injury of the rape victim being physical, as well as, psychological in the form of traumatised assault and ravishment of her chastity and womanhood. Corroboration from medical evidence varies from case to case as it depends upon the circumstances of each case. (Refer : Ganga Singh Vs. State of M.P., AIR 2013 SC 3008 ; Santosh Prasad @ Santosh Kumar Vs. State of Bihar, AIR 2020 SC 985 ). 31. Through judicial pronouncements rendered in several cases viz, Madan Gopal Kakkad Vs. Corroboration from medical evidence varies from case to case as it depends upon the circumstances of each case. (Refer : Ganga Singh Vs. State of M.P., AIR 2013 SC 3008 ; Santosh Prasad @ Santosh Kumar Vs. State of Bihar, AIR 2020 SC 985 ). 31. Through judicial pronouncements rendered in several cases viz, Madan Gopal Kakkad Vs. Naval Dubey and another, 1992 SCC (3) 204, Rajinder @ Raju Vs. State of H.P., (2009) 16 SCC 69 and State of U.P. Vs. Chhoteylal, (2011) 2 SCC 550 , the Supreme Court has clarified that even where no external or internal marks of injury on the private part of the victim of rape was found in medical examination, the testimony of the prosecutrix that she was raped by the accused, cannot be discarded. Where observations recorded by doctor during medico-legal examination of prosecutrix clearly making out that prosecutrix having been subjected to rape and the doctor as witness of the prosecution stating in response to a suggestion put to her by defence counsel that injury of the nature found on the hymen of prosecutrix could be caused by a fall, does not lead the court anywhere. The Court proceeded to observe that why would the girl or her mother charge the accused, who is a near relation, with rape if the injury was caused by the fall, that too, when the victim in her deposition had spoken of penetration. Further discovery of spermatozoa in the private part of the victim is not a must to establish penetration as there are several factors which may negate the presence of spermatozoa. 32. In Ranjit Hazarika V. The State of Assam, (1998) 8 SCC 635 , the victim was aged about 14 years and her testimony was corroborated by other evidences and was found trustworthy, even though the doctor had opined that there was no sign of rape. The Supreme Court held that on the given facts corroboration of testimony of prosecutrix by medical evidence was not essential. 33. In State of Himanchal Pradesh v. Manga Singh, (2019) 16 SCC 759 , the victim was aged about nine years and she had levelled allegations of rape against her cousin. The medical opinion was not supporting the factum of rape, however, the victim was found consistent and corroborated by other evidences. The Supreme Court dismissed the appeal against conviction. 34. In State of Himanchal Pradesh v. Manga Singh, (2019) 16 SCC 759 , the victim was aged about nine years and she had levelled allegations of rape against her cousin. The medical opinion was not supporting the factum of rape, however, the victim was found consistent and corroborated by other evidences. The Supreme Court dismissed the appeal against conviction. 34. In the case of Sham Singh v. State of Haryana, (2018) 18 SCC 34 , it is observed that testimony of the victim is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts should find no difficulty to act on the testimony of the victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. The courts should not get swayed by minor or insignificant contradictions/discrepancies in the statement of the prosecutrix. In paragraphs 6 and 7, it is observed and held as under : "6. We are conscious that the courts shoulder a great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity. The courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case. If the evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations or sexual assaults. [See State of Punjab v. Gurmit Singh, (1996) 2 SCC 384 ] (SCC p. 403, para 21).] 7. It is also by now well settled that the courts must, while evaluating evidence, remain alive to the fact that in a case of rape, no self-respecting woman would come forward in a court just to make a humiliating statement against her honour such as is involved in the commission of rape on her. It is also by now well settled that the courts must, while evaluating evidence, remain alive to the fact that in a case of rape, no self-respecting woman would come forward in a court just to make a humiliating statement against her honour such as is involved in the commission of rape on her. In cases involving sexual molestation, supposed considerations which have no material effect on the veracity of the prosecution case or even discrepancies in the statement of the prosecutrix should not, unless the discrepancies are such which are of fatal nature, be allowed to throw out an otherwise reliable prosecution case. The inherent bashfulness of the females and the tendency to conceal outrage of sexual aggression are factors which the courts should not overlook. The testimony of the victim in such cases is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts should find no difficulty to act on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. (See Ranjit Hazarika v. State of Assam (1998) 8 SCC 635 )." 35. Applying the principle of law to the facts of the case at hand, in the backdrop of the prosecution evidence, the prosecution version is proved beyond reasonable doubt. The victim PW-2 informed her husband PW-1 in the morning on returning home. The prosecutrix with clarity stated and identified the appellant-accused of having committed the offence of rape. The incident is duly corroborated by the testimony of the neighbour PW-3. The defence failed to demolish the statements of PW-1, PW-2 and PW-3 or cast reasonable doubt. In the backdrop of the testimony of the witnesses of fact, in particular, of the prosecutrix, the medical expert opinion with regard to the commission of the offence would not demolish the prosecution case. 36. On arriving at the conclusion that the appellant is liable to be convicted under Section 376 IPC and the appropriate sentence to be imposed needs consideration. The incident in question is based on the complaint dated 31.3.2001. 36. On arriving at the conclusion that the appellant is liable to be convicted under Section 376 IPC and the appropriate sentence to be imposed needs consideration. The incident in question is based on the complaint dated 31.3.2001. In this circumstance, though it is noted that Section 376 has been amended w.e.f. 21.04.2018 providing for the minimum sentence of 10 years, the case on hand is of 2001 and the conviction of the appellant was on 6.9.2002. The incident having occurred prior to amendment, the preamended provision will have to be taken note of. The same provides that a person committed of rape shall be punished with rigorous imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life and shall also be liable to fine. In the instant case, taking into consideration all facts including that no material is available on record to indicate that the appellant has any criminal antecedents and that there is no reason to apprehend that the appellant would indulge in similar acts in future. Further, victim has left the village where the appellant resides. In the circumstances, we deem it appropriate that the sentence of 10 years rigorous imprisonment would have been sufficient deterrent to serve the ends of justice. 37. The conviction and sentence under Section 452 IPC is confirmed. The conviction order made by the trial court under Section 376 IPC is modified. The appellant is instead convicted under Section 376 IPC and is sentenced for a period of 10 years rigorous imprisonment. The fine and default sentence as imposed by the trial court shall remain unaltered. The fine shall be paid to the victim towards compensation. 38. The appeal is allowed in part as provided hereinabove. 39. The record of the trial court shall be returned forthwith along with a copy of this order.