Important Point-Undue sympathy to impose inadequate sentence would do more harm to justice system to undermine public confidence in efficacy of law.

Rajesh H. Shukla, J.

1. The present Appeal is directed against the judgment and order passed in Sessions Case No. 40 of 2008 by the learned Sessions Judge, Bharuch dated 23-10-2008 recording conviction of the accused for the offence punishable under Section 376(2)(f) read with Section 506(1) of the Indian Penal Code imposing the sentence of R.I. for 10 years, for the offence under Section 376(2)(f) and fine of Rs. 21,000/- and in default S.I. for 2 years and R.I. for 8 months for the offence under Section 506(1) I.P.C. and fine of Rs. 3,000/- and in default S.I. for 3 months. The Court had also passed an order under Section 357 of the Code of Criminal Procedure that compensation of Rs. 20,000/- may also be paid to the victim. The facts of the case briefly summarised are as follows: As it transpires from the material and evidence on record, the accused is said to have committed rape on the victim girl aged about 9 years when she had gone to the house of the accused for tuition. The accused had asked her to go inside the house to fetch the match box, and when she entered the house, the accused followed her and laid her down and committed the offence, for which the complaint came to be filed, which was registered as F.I.R. No. 6 of 2008 with Wagra Police Station for the offence under Sections 376(2)(f) read with Section 506(1) of I.P.C. it is stated that when the victim had returned to her house, on an inquiry by the mother and the aunt in the evening, she disclosed the incident and had also stated that she was threatened that if she had told anybody she would be beaten the next day when she would visit the Madrasa. The victim girl has narrated to her mother and aunt, on the basis of which, the Sarpanch was called, and thereafter, the aforesaid F.I.R. being I-CR No. 6 of 2008 came to be registered with Wagra Police Station for the alleged offences as stated above.

2. After the investigation was over, the charge-sheet was filed and as the offence under Section 376 I.P.C. is triable by the Court of Sessions, it was committed to the Court of Sessions. Thereafter, the learned Sessions Judge framed the charge at Exh. 5 against the accused for the offence under Section 376(2)(f) read with Section 506(1) of I.P.C.

3. In order to bring home the charges levelled against the accused, the prosecution examined the witnesses including the victim mother and also produced the documentary evidence which shall be referred to in the judgment hereinafter.

4. After recording of the evidence of the prosecution witnesses was over, the learned Sessions Judge, Bharuch recorded further statement of the accused under Section 313 of Cr. P.C.

5. After hearing the learned A.P.P. as well as the learned Advocate for the accused, the learned Sessions Judge, Bharuch recorded the conviction of the accused and sentenced him as stated hereinabove. It is this judgment and order which has been assailed on the grounds stated in the memo of appeal.

6. Learned Advocate Shri Gajendra P. Baghel for the appellant-accused referred to the testimony of the victim (minor) P.W. 1 at Exh. 14 and has tried to submit that she was minor, and therefore, she was tutored. He also referred to the testimonies of the Panch Witness like Panch Witness for recovery of the clothes of the victim, Sultanbhai P.W. 2 at Exh. 16. Similarly, the testimony of the recovery of the mattress and other articles at Exh. 20 and also the testimony of Babubhai Patel - Panch Witness for recovery of the clothes of the accused at Exh. 24 and the testimony of Bilkish Banu (mother) P.W. 6 at Exh. 30. He has also referred to the medical evidence and the evidence of Dr. Ashokkumar Parmanand Gupta P.W. 7 at Exh. 32 who examined the victim and recorded the history and the medical certificate at Exh. 34. He also referred to the testimony of Dr. Jyotiben Ashokkumar Gupta P.W. 8 at Exh. 36 who also examined the victim and issued the medical certificate at Exh. 38 and injury certificate at Exh. 40. Learned Advocate