Point of Law: Sentence should not be either excessively harsh or ridiculously low. While determining the quantum of sentence, the court should bear in mind the principle of proportionality. Sentence should be based on facts of a given case.

JUDGMENT :

1. By way of this appeal, the appellants have challenged the Judgment and order 20.4.2010 passed by court of Additional District and Sessions Judge/FTC, Court No. 2, Ghaziabad in Session Trial No. 393 of 2009 arising out of Case Crime No. 1310 of 2008 under Sections 354, 376 Indian Penal Code, Police Station-Sahibabad, District-Ghaziabad whereby the accused-appellants were convicted under Section 376 IPC and sentenced to imprisonment for life with fine of Rs. 25,000/- each and Section 354 of IPC convicted for two years rigorous imprisonment and fine of Rs. 3000/-.

2. The brief facts of this case are that complainant Munni Devi, mother of the prosecutrix, submitted a written report at Police Station Sahibabad, District Ghaziabad, Ex.Ka-2 stating that her daughter (prosecutrix) was going to Happy Public School, Rajendra Nagar for bringing her cousin sister on 23.8.2008 at about 1.30 p.m. On the way Arshad, Mohsin and Mansad resident of village Pasaunda met and they all started molesting her, Arshad tried to drag her to the Budha Park, she raised alarm and some of people gathered there. Then they all ran away from there. On this report, a first information report was lodged at Police Station Sahibabad under Section 354 I.P.C. After lodging the FIR, investigation was started.

3. Investigating Officer recorded the statements of prosecutrix and other witnesses, prepared site plan. Medical examination of prosecutrix was conducted. After completing the evidence, charge sheet was submitted. The case being trial be exclusively by the court of session, it was committed to the sessions Court by the competent Magistrate.

4. Learned Judge framed charges against the accused-Mohsin and Mansad under Sections 354 and 376 IPC which were read over to the accused persons. Accused persons denied charges and claimed to be tried. Accused-Arshad was declared juvenile and his trial was separated. The prosecution so as to bring home the charges, examined six witnesses, who are as under:

5. After completion of prosecution evidence, the accused was examined under Section 313 Cr.P.C. in which he denied evidence against him, two witnesses, namely, DW-1 Mohd. Sirajuddin and DW-2 Mohd. Waseem were examined by the accused in defence.

6. In support of the ocular version of the witnesses, following documents were produced and contents were proved by leading evidence:

7. Heard Shri Rajiv Lochan, learned counsel for the appellants, learned AGA for the State and also perused the record.

8. Perusal of record shows that occurrence took place at about 1.30 p.m. it means that it was day-light incident. Although in the beginning, the mother of the prosecutrix lodged the FIR only with the averments leading to the offence to the extent of Section 354 IPC only, but in her statement under Section 164 Cr.P.C. the prosecutrix narrated the incident in detail in which she made accusation against the accused-appellants and stated that they committed rape with her one by one after tying her mouth and hands.

9. The story narrated by the prosecutrix under Section 164 Cr.P.C. was repeated by her before learned trial Court as PW-1.

10. Learned counsel for the appellants attracted our attention towards some contradictions in the evidence of prosecutrix and in her statement under Section 164 Cr.P.C. but these contradictions do not go to the root of the case.

11. Medical examination of prosecutrix was conducted and medical report was prepared. The evidence of prosecutrix stands on the same footing of injured witness. Prose