Point of Law: “Friedman in his Law in Changing Society stated that: “State of criminal law continues to be - as it should be - a decisive reflection of social consciousness of society.” Therefore, in operating the sentencing system, law should adopt the corrective machinery or deterrence based on factual matrix. By deft modulation, sentencing process be stern where it should be, and tempered with mercy where it warrants to be. The facts and given circumstances in each case, the nature of the crime, the manner in which it was planned and committed, the motive for commission of the crime, the conduct of the accused, the nature of weapons used and all other attending circumstances are relevant facts which would enter into the area of consideration.”

JUDGMENT :

RAMESH SINHA, J.

1. The present Criminal Appeal has been preferred against the judgment and order dated 08.03.2013 passed by Additional Session Judge, Court No. 6, Etawah in S.T. No. 55 of 2010 convicting and sentencing the appellant to undergo for life imprisonment under Section 376(1) IPC and to pay a fine of Rs. 20,000/- in default of payment of fine, further imprisonment for one year additional rigorous imprisonment.

2. The brief facts of the case are that the informant Indrapal Singh Katheriya submitted a written report at Police Station Chaubiya, district Etawah on 23.12.2009 stating that his daughter who was aged about 10 years and studying in class IVth had gone to the gram field of Birendra Singh Jatav, resident of Simariya who was known to him for taking gram greens (Chane Ka Saag) and while she was taking the gram greens, the nephew of Birendra Singh namely Jitendra @ Gabbar S/o Rajendra Jatav committed rape on her. His daughter came to her house crying and informed about the entire incident to her mother who in turn informed the informant then the informant inquired from his daughter who told him that Jitendra had dragged her from gram field to mustered field where he committed rape on her. The incident has taken at 1 p.m. in the afternoon. On the basis of written report submitted at police station Chaubiya Case Crime No. 231 of 2009 under Section 376 IPC was registered on 23.12.2009 at 17.45 hours against the appellant Jitendra @ Gabbar Jatav which was also endorsed in the G.D. No. 19 time 17.45 hours on 23.12.2009 at the said police station.

3. 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 its catena of judgments, the identity of the prosecutrix/victim is not being disclosed and she is referred to as “A” hereinafter.

4. The investigation of the case was entrusted to the Investigating Officer who prepared a site plan of the place of occurrence and took the clothes of the prosecutrix/victim “A” (hereinafter referred as the prosecutrix/victim “A”) and prepared the recovery memo of the same. The emergency doctor Jyotsana Bhatiya conducted the medical examination of the victim girl and Dr. Dinesh Singh, Radiologist conducted the ossification test of the victim girl. After completing the investigation of the case the Investigating Officer submitted a charge sheet against the appellant Jitendra @ Gabbar Jatav under Section 376 IPC before the competent court.

5. The learned Magistrate took the cognizance of the offence and committed the case to the court of Sessions. The learned trial court framed charges against the appellant Jitendra @ Gabbar Jatav under Section 376 IPC who denied the same and claimed trial.

6. The prosecution in support of its case produced PW-1 prosecutrix/victim “A” PW-2 Indrapal, PW-3 Smt. Shiv Kumari, PW-4 Dr. Jyotsana Bhatiya, PW-5 Sub-Inspector Dharampal Singh (Investigating Officer), PW-6 Constable Clerk Tilak Singh, PW-7 Alok Prabhakar Awasthi 2nd Investigating Officer, PW-8 Constable Clerk Roshan Lal and PW-9 Dr. Dinesh Singh Radiologist.

7. The statement of the accused was recorded u/s 313 Cr.P.C. who denied the prosecution case and has stated that the police has falsely implicated him in the present case and the witnesses have falsely deposed against him and on the date of the incident he had gone to the house of his maternal uncle at Mainpuri. It was further stated by him that Sunil, Rambabu, Pappu, Ashok, Durgpal, Raj Bahadur, Bhanwarpal had grabbed his land due to said enmity in collusion with the Village Pradhan the appellant has been falsely implicated in the present case.

8. The accused in his defence has produced DW-1 Nand Ram, DW-2 Rajeshwar Dayal and DW-3 Dr. Ravindra Kumar Gupta.

9. The prosecutrix/victim “A” in her deposition before the trial court has stated that she had gone from her house to a field where she was all alone while taking gram greens (chane ka saag), the accused Jitendra @