Gujarat High Court
Vallabhbhai Avsarbhai Patel vs State Of Gujarat on 1 December, 2003
JUDGMENT Kshitij R. Vyas, J.
1. The appellant - original accused has filed this appeal under Section 374 of the Code of Criminal Procedure, challenging the judgment and order of conviction and sentence dated 17.4.1999 passed by the learned Sessions Judge, Bhavnagar, in Sessions Case No.113 of 1998, convicting the accused for the offence punishable under Section 376 of IPC and sentencing him to suffer R.I. for 10 years and to pay a fine of Rs.10,000/-, in default, to undergo two years' S.I.
2. The facts giving rise to the prosecution case, in brief, are as under:
The complainant Mancharam, uncle of the prosecutrix Rojita, is residing at Bhavnagar while his other brothers Vishnubhai and Jayantibhai (father of the prosecutrix) are residing at village Haripura. The complainant had gone to Haripurapar on 14th Jan.1998, when his mother informed him that the daughter of Jayantibhai aged about 8 years had gone to her school and during recess time, accused took her to his house. It is the prosecution case that accused at first asked the prosecutrix to purchase a match box and to give the same to his mother at his residence. The prosecutrix, after purchasing the match box, went to the house of the accused. She found that the mother of the accused was not there. The accused thereafter came and closed the door from inside and thereafter made the prosecutrix to lie down, removed her knicker as well as removed his pant and lied down on the prosecutrix. After some time she came out of the house and was weeping. It is the case of the prosecution that the friends of the prosecutrix who had gone to school had gone to the house of Jayantibhai and informed Lilaben that prosecutrix was confined in the house of accused and she is weeping. Lilaben therefore went towards the school running and found the prosecutrix, crying, near the house of the accused. The prosecutrix narrated the incident to Lilaben. She waited for her husband Jayantibhai, who is mentally retarded, to come. In short, the complainant Mancharam, was informed about the incident on 14th January 1998. The complainant took the prosecutrix to Bhavnagar where he discussed this incident to his friend Natubhai, who advised him to file the complaint, accordingly the complaint came to be lodged on 16th January 1998 before Gadhada Police Station, registered as C.R.No.I-11 of 1998 and the investigation was started. The panchnama of the scene of the offence was drawn; the clothes of the prosecutrix were attached; and the prosecutrix as well as the accused were examined by Dr.Narendra Trambaklal. After completion of the investigation, the chargesheet was submitted by the police before the learned JMFC, at Gadhada, who in turn, committed the case to the Sessions Court at Bhavnagar as the offence was exclusively triable by the said Court.
3. The charge at Exh.3 was framed against the accused who pleaded not guilty to the same and claimed to be tried. In the statement of the accused recorded under Section 313 of the Code of Criminal Procedure, he has come out with a case that a false case is filed against him as there is a dispute of monetary transaction by the accused and the complainant's brother. The learned trial Judge, after appreciating the oral as well as documentary evidence on record, including the statement recorded under Section 313 of the Code of Criminal Procedure, recorded a finding that the prosecution has established the charge levelled against the accused beyond reasonable doubt and accordingly, convicted the accused for the offence punishable under Section 376 of IPC.
4. Learned Counsel Mr.A.D.Shah appearing for the appellant, after taking us through the entire evidence, broadly submits that:
(i) The evidence of the prosecutrix who is a child witness is not reliable which clearly indicates tutoring;
(ii) The identification of the accused by the prosecutrix is not reliable;
(iii) The evidence of the child witness indicates that the mother of the said witness pointed at the accused as Vallabh Avsar while they were sitting in the Court room and the accused was sitting in the dock of the Court;
(iv) The evidence of the complainant Mancharam is also not reliable and he appears to have tutored the child witness before lodging the complaint and in getting her statement recorded. Further, the delay in filing the complaint supports the tutoring;
(v) The medical evidence of Dr.Narendrabhai, in his examination in chief, suggests attempt of rape. However, his cross examination suggests that the injuries found in Vagina of the prosecutrix were just possible due to insertion of finger.
(iv) The medical evidence clearly rules out any intercourse with the prosecutrix.
On the point of appreciation of the evidence of the child witness, learned Counsel Mr.Shah has invited our attention to the judgements rendered in the following cases:
(i) State of Assam v. Mafizuddin Ahmed, AIR 1983 SC 274;
(ii) Chhagan Dame v. State of Gujarat, 1994 Cr.L.J. 56;
(iii) Prahlad Singh v. State of Madhya Pradesh, , 1997 Cr.L.J. 4078; and
(iv) Caetano Piedado Fernandes v. Union Territory of Goa, Daman and Diu, AIR 1977 SC 135.
On the point of medical evidence regarding sexual intercourse, he referred to the following decisions:
(i) State of Kerala v. Kundumkara Govindan and anr., 1969 Cr.L.J. 818; and
(ii) Shankar Tukaram Ursal v. State of Maharashtra, 1977 Cr.L.J. 476.
5. On the other hand, learned APP Mr.N.D.Gohil, while supporting the judgment of the trial Court, submits that the prosecution, in the instant case, has established that the accused has committed a heinous crime by committing rape on a girl aged eight years and therefore, no leniency is required to be shown. He has relied upon the latest decision of the Apex Court in the case of State of Rajasthan v. Om Prakash, reported in AIR 2002 SC 2235.
6. The prosecution, in order to bring home the charge against the accused, has mainly placed reliance on the evidence of Dr.Narendrabhai, PW-3 Exh.12; the mother of the prosecutrix, Lilaben, PW7 Exh.28; Rojita, the Prosecutrix, PW2 Exh.10; complainant - Mancharam, PW1 Exh.9; and Abubhai, School Teacher, PW 8 Exh.29. It may be stated that Gordhanbhai, Shop Keeper, from whom the prosecutrix purchased the match box, who is examined by the prosecution as PW6 Exh.27; Panch Devjibhai, PW4 Exh.22; and Gokul, PW5 Exh.24 who prepared the panchnama of the scene of offence have not supported the prosecution case and were declared hostile.
7. PW7 Lilaben in her evidence at Exh.28 has stated that on 9.1.1998, the prosecutrix had gone to the school after taking her meals at 12.00 noon. She was wearing a sky-blue skirt and white bush shirt being school uniform. At 2.30 in the noon, when she was doing her stitching work at home, the school friends of her daughter came and informed her that Rojita is confined in the house of Vallabh (accused) and she is crying. Lilaben had immediately rushed to the spot and found her daughter crying. After taking her to her house, on making inquiry as to what happened to her, her daughter informed that Vallabh, son of Avsar Dada had sent her to purchase match box and told her to deliver it to his mother who is there in the house. According to her, she had gone to the house of the accused and she did not find the mother of the accused. Vallabh thereafter came and closed the door from inside and made her to lie down on the cot and committed rape on her. She made her to calm down and thereafter thought as to what to do in the matter. She has also stated that her husband is mentally imbalanced and had gone out to have a round in the village. She applied medicine to the private part of her daughter and also saw swelling in the private part of her daughter. The elder brother of her husband and his wife came to their house. She cried before them and they insisted to know about the same. She told regarding the entire incident to the wife of Mancharam and thereafter Mancharam took her daughter to Bhavnagar for further study. Mancharam thereafter filed the case before the Gadhada Police Station. She identified the accused in the Court. She has stated that the house of the accused is near the School of her daughter. In cross examination, she has stated that she knew the accused as he belongs to her village. She has admitted that she has not informed about the incident to any other person till Mancharam, the brother of her husband had met her. Certain contradictions have been brought regarding her previous statement with regard to confinement of her daughter and regarding the house of the accused. However, in our opinion, the so-called contradictions are too minor and nothing turns out of the same as far as the real incident is concerned. She also denied the suggestion that her daughter was not knowing either the accused or his father. She also denied the suggestion that a false case is filed by the complainant on account of monetary transaction with the accused.
8. The prosecutrix, PW-2, is examined at Exh.10. The Court, by asking this child witness certain questions wanted to ascertain as to this witness is in a position to give the evidence on oath or not? The Court has observed that the manner in which the prosecutrix has replied shows that she is not matured enough to give the evidence on oath. Therefore, her statement is recorded. She has clearly stated that when she had gone to school, Vallabh was there and asked her to purchase a match box and to give it to his mother. Vallabh had given her one rupee to purchase the match box and she accordingly purchased the match box and had gone to the inner portion of the house of the accused. She did not find the mother of the accused. According to her, the accused thereafter came and took her to the room where the cotton was stored and there was also a cot. Vallabh has removed his trousers and her knicker and lied down on her. Thereafter she started crying and had gone to her house crying. She narrated the incident to her mother. She has positively stated that the police had come with Vallabh and she was taken to the house of Vallabh where she was taken to the room where the cotton was stored. She identified the accused sitting in the Court. It appears that thereafter she was not in a position to give further statement. In the cross examination, she has clearly stated that she has given the details regarding the house of the accused. According to her, the house of the accused is situated near her school beyond the house of one Bharwad.
2.12.2003 She has stated that her uncle has explained as to what reply is to be given when she was to be interrogated by the police. She has also admitted that her uncle has also told her as to what reply is to be given in the Court. She has stated that her uncle also told her to state that Vallabh removed his trouser and thereafter her knicker was removed. In the Court room, she and her mother were sitting on the last bench. Her mother also informed her that Vallabh is sitting in the dock in the Court. She has admitted that Vallabh has not come to her house and she had also not gone to the house of Vallabh before the incident. She has admitted that in the house of Vallabh, his parents and brother and sister are staying. She has also admitted in the cross examination that before taking her to the hospital, her mother examined the private part of her daughter after removing her knicker. In the hospital also, somebody has inserted a finger in the Vagina. However, she did not reply as to who did it.
9. Reading the evidence of the prosecutrix as well as her mother, Lilaben, we find that their evidence is quite natural and without any exaggeration. We cannot ignore the hard realities, viz. Lilaben is living in a small village of Haripura, her husband is mentally retarded and therefore, it is very difficult for her to take immediate decision in the matter. She merely informed her mother-in-law staying separately with the other brother of the complainant. Therefore, even though the incident has taken place on 9th January 1998, nothing has been done either by Lilaben or Vishnubhai - brother of the complainant and it is only when the complainant went to Haripura, on 14th January 1998, he was informed about the incident firstly by his mother and thereafter by Lilaben. Complainant Mancharam took the prosecutrix to Bhavnagar after staying for two days at Haripura. On reaching Bhavnagar, after taking advice from his friend, Natubhai, he had gone to Gadhada Police Station and lodged the complaint on 16th January 1998. In the cross examination, the complainant has clearly stated that the household expenses of the family of his brother Jayantibhai father of the prosecutrix are being met with by begging. He has denied the suggestion that the accused had given a loan of Rs.18,500/- by his brother Chetan and as he was demanding the balance amount of Rs.13,000/-, the false case is filed against him. The complainant and his brother Chetan (Vishnubhai) bore the expenses of the medical treatment of Jayantibhai.
10. Taking into consideration the entire evidence, it appears that the complainant being the eldest in the family, being a dominating figure, is the only person to take a decision whether to lodge the complaint against the accused or not. Therefore, even though the incident which had taken place on 9th January 1998, nothing was done till the arrival of the complainant at village Haripura, who after getting information from the mother of the complainant as well as the prosecutrix, decided to file the complaint against the accused on 16th January 1998, i.e. after a period of one week, which in our opinion, is not at all fatal to the prosecution case. There was no reason for the prosecutrix to falsely implicate the appellant. She, in her examination in chief, has clearly stated that the accused was standing near the school and had told her to purchase a match box and to give it to his mother. After purchasing the match box, the prosecutrix had in fact had gone inside the house and did not find the mother of the accused. If the accused is not known to her, she could not have obliged him by purchasing the match box. The fact that she has gone right inside the house of the accused will clearly go to show that she knew the accused, that cotton was stored in the room and regarding the existence of the cot in the room. These facts also get corroboration from the panchnama of the scene of offence, Exh.23. It is the positive say of the prosecutrix that the accused committed rape on her on the cot which is found in the panchanama of the scene of offence. In view of this, it is not possible for us to accept the submission of Mr.Shah for the appellant that the appellant was not known to the prosecutrix prior to the incident and was falsely involved. The answer given by the prosecutrix in the cross examination is required to be appreciated in proper perspective. It is required to be borne in mind that the prosecutrix is of tender age of 9 years when her statement was recorded in the Court and that too, after one year of the incident. She is the victim of heinous act committed on her and because of her tender age, she is not in a position to understand the implications of the act committed on her and the reply she is giving to the questions being put to her. For example, in the examination in chief, she says that the accused took her to the room where cotton was stored and the cot was lying and the accused removed her knicker and removed his trousers and lied down on her.
In the aforesaid facts, true, she is not giving all details regarding the insertion of Penis into the Vagina etc. An argument is advanced before us that as she is not giving all details, there was no sexual intercourse as the accused has simply lied down on her. This argument, in our opinion, is not available to the defence as one just cannot simply lie down after removing the clothes and did nothing. For that purpose, the medical evidence is required to be appreciated.
Likewise, the prosecutrix, in her cross examination, has stated that she was taken to the Police Station by her uncle and her aunt. It is quite natural that the elder one always advises the younger to inform the police by giving all details. So also, the prosecutrix was also advised to give all details in the Court by her uncle, i.e. the complainant. The prosecutrix being a minor of tender age and if she is told to give all facts before the police and the Court and prosecutrix has accordingly narrated the incident, could she be branded as tutored witness? One should not forget that she is the victim of the heinous act committed on her. It is not possible for us to believe that the prosecutrix is being used to falsely involve the accused to settle the monetary transactions between the brother of the complainant and the accused and therefore, the prosecutrix is being tutored to involve the accused in the serious offence of rape. Likewise, the prosecutrix has admitted in the cross examination that her mother showed her accused, named Vallabh, sitting in the dock of the Court. Mere showing the accused sitting in the Court by the mother is not sufficient for us to hold that the prosecutrix is a tutored witness. We fail to understand as to what was to be taught to the prosecutrix and what was the purpose to falsely involve the accused with the so-called monetary transactions between the accused and the brother of the complainant. The said alleged transactions are not be acceptable in absence of reliable evidence and the same remained mere suggestions only. In any case, it is not possible for us to accept that for the said transaction, the prosecutrix is being used by the complainant. The prosecutrix giving all details about the parents, the brother and the sister of the accused in her cross examination, the details about the house of the accused and also the involvement of the accused in the commission of the offence. In our opinion, there is no earthly reason for us not to accept the evidence of the prosecutrix as well as her mother Lilaben. We accordingly while accepting the evidence of the prosecutrix and her mother Lilaben, hold that their evidence is reliable, natural and trust-worthy and therefore, acceptable. It is therefore not possible for us to discard the evidence of the prosecutrix on the ground that she is a tutored witness.
11. The next question arises for our consideration is as to whether the accused has committed rape on the prosecutrix or not. As observed by us earlier, the incident in question has taken place on 9th January 1998 between 2.30 and 3.00 in the afternoon in the house of the accused, when the prosecutrix was asked to go inside the house by the accused. The complaint was filed on 16.1.1998 before Gadhada Police Station. The prosecutrix was sent to the Community Health Centre, Gadhada for medical examination with Police Yadi at about 8.30 p.m. Dr.Narendra Trambaklal, the Medical Officer has examined the prosecutrix. Dr.Narendrabhai is examined by the prosecution as PW3 at Exh.12. He, in his evidence, has stated that on being asked about the case history, the prosecutrix informed him that Patel Vallabhbhai committed rape on her on 9.1.1998 at about 2.30 - 3.00 O'Clock. After examining her, he has issued the certificate at Exh.13. After examining her, he noticed the following:
(1) Clothes :
(1) Red Colour Shirt (2) Red Colour Coat (3) White Colour Shirt.
- No stain of blood or semen on the clothes.
(2) No external injuries found on body, face, abdomen, chest, face.
(3) Genital Organs -
- Pubic heirs not present.
- No recently effused or dried blood found on genital organ or neighbourhood parts.
- No bruising or laceration of external genital organs.
- Labia Majora Normal.
- Labia Minora - congested and red.
- Hymen - Red and congested, tear of hymen at 6 O'Clock position.
- Vagina - Introduces tip of little finger very painfully.
In the opinion of the Doctor, considering the injuries noticed on her, attempt of rape is possible on the prosecutrix. Dr.Narendrabhai also examined the accused on 17.1.1998. On being asked the case history, the accused had also given the history of having committed rape on the prosecutrix on 9.1.1998 at 2.30 or 3.00 p.m. Dr.Narendrabhai has been cross examined at length. He has admitted that he has not noticed any injury on the Labia Majora, Labia Minora, and the skin connecting Labia Majora, Foreset, Fossanavicula, Vestibule and Introitus. He has admitted that when he examined the Hymen of the girl, there was no bleeding. Dr.Narendrabhai has been repeatedly asked the question on the congestion on the Labia Minora. While denying the suggestion that the congestion shall disappear within hours, he has ascertained that the same shall continue for 8 to 10 days. He has specifically denied that the injuries sustained by the prosecutrix in the inner portion of the Vagina were of around two days. According to Dr.Narendrabhai, the said injuries were of a period of around seven days. When a pointed question as to the possibility of congestion of the Hymen disappearing, is put to the Doctor, he has stated that in normal course, in healthy women around 16 to 17 years of age, such healing is possible. However, in the opinion of the Doctor, in girls of tender age, immediate healing is not possible. He has also opined that the prosecutrix being eight years of age, the tip of small finger was inserted in the Vagina with great difficulty. In paragraph 15 of his cross examination, he has admitted that in the present case, the injuries on Labia Majora and Labia Minora are possible if the Penis is inserted in the Vagina. He has denied the suggestion that the prosecutrix and the accused have not given the case history.
12. On going through the medical evidence, it is clear beyond any manner of doubt that the Labia Minora of the prosecutrix was red in colour even after seven days and there was swelling. The Hymen was also red, there was swelling and was in congested position at 6 O'Clock. From the history given by the prosecutrix as well as the accused to Dr.Narandrabhai, it is also clear that the prosecutrix was subjected to rape as the accused penetrated his Penis into the Vagina of the prosecutrix. Dr.Narendrabhai has remained consistent in his evidence, though subjected to detailed cross examination. In view of this, it is not possible for us to accept the submission of Mr.Shah for the appellant that the prosecutrix was not subjected to rape. Though Dr.Narendrabhai has admitted in his cross examination the suggestion of the defence that the injuries sustained by the prosecutrix are possible if the finger is inserted into the Vagina, the so-called admission by Dr.Narendrabhai cannot be read in isolation and the same is required to be read along with the evidence in toto. There is no reason for Dr.Narendrabhai to falsely involve the accused in the serious offence of rape when he has admitted that the prosecutrix and the accused have given the history of rape. The injuries sustained by the prosecutrix are consistent with the medical evidence. In this view of the matter, in our opinion, the prosecution has established the case against the accused beyond any manner of doubt. We, therefore, hold that the accused has committed rape on the prosecutrix and he has been rightly convicted by the trial Judge.
13. On going through the case laws on the question of the statement of child witness - chance of tutoring, cited by the learned Counsel Mr.Shah for the appellant, we agree with the principles laid down in the said decisions. We are conscious of the fact that we are convicting the accused on simply relying upon the evidence of the child witness. As observed by us earlier, the evidence of the prosecutrix and her mother is natural and inspire confidence. There is no reason for them to falsely involve the accused. The prosecutrix knew the accused as well as his relatives and the house of the accused including its inside portion. From the evidence of the prosecutrix, we do not find anything which would go to suggest that she was being tutored. The complainant telling her to inform the police and the Court as to whatever happened to her, in our opinion, do not amount to tutoring. Therefore, the facts of the case on hand are distinguishable from the authorities cited before us.
14. Similarly the authorities cited by Mr.Shah of the Kerala High Court as well as the Bombay High Court on the question of sexual intercourse will be of no assistance to him, in view of the medical evidence on record. In the instant case, on the basis of the case history given by the prosecutrix as well as the accused himself before the Doctor, who is an independent witness, which corroborates with the injuries sustained by the prosecutrix on the Labia Minora, tearing of the Hymen, we are of the view that the prosecution has established the penetration of the Penis into the Vagina of the prosecutrix. In that view of the matter, we are satisfied that the ingredients of penetration as required under Section 376 of IPC are satisfied.
15. The Apex Court, in an almost identical case, rendered in State of Rajasthan v. Om Prakash, reported in AIR 2002 SC 2235, has ruled in the case of child rape, that the accused who played with the life of of the child does not deserve any leniency. In the said case, the prosecutrix, like in the present case, was aged about 8 years and was alleged to be raped. The Apex Court has found that, when such an act is done, the evidence of the victim is not unnatural and there was no valid reason to discard the evidence of the Doctor rejecting the contention that the prosecution has not examined the independent witness, i.e. the persons other than the family members of the victim and it was held that the same cannot be a ground to set aside the conviction of the accused.
The Apex Court, on the question of filing of the complaint early, observed that when reputation and prestige of the family and career or life of the victim is involved, awaiting arrival of elders of the family for taking decision to lodge FIR is not unnatural. In the opinion of the Apex Court, the delay was fully explained. As observed earlier, the facts in the said decision are squarely applicable to the facts of the present case.
In the said decision also, a contention was raised on the question of sentence, i.e. that the incident took place about 13 years back and by that time, the accused has matured and around 31 years of age and had already undergone nearly three years of sentence, the Apex Court has observed that, the accused having played with the life of a child, does not deserve any leniency and he was directed to undergo the remaining part of the sentence as ordered by the trial Court. In our opinion, in the present case also, the accused, on the same reasoning, does not deserve any leniency as far as the sentence is concerned.
16. We accordingly dismiss the appeal while confirming the judgment and order of conviction and sentence dated 17.4.1999 passed by the learned Sessions Judge, Bhavnagar in Sessions Case No. 113 of 1998.
17. In view of the order passed in the main appeal, Criminal Application No. 7073 of 2003 is rejected.
K.M. Mehta, J.
1. I had an advantage of going through the judgement of my brother Mr. Justice K.R. Vyas. My brother has dealt with the facts of the case in detail and also certain aspects of law. I fully agree with the conclusion reached by my brother both on facts as well as in law. However, looking to the importance of the matter, I would like to give more reasons in support of the conclusion reached by my brother.
1.1 The prosecution has established the charges levelled against the accused beyond reasonable doubt and accordingly the accused was convicted for offence punishable under Section 376 of the I.P.C. It is the case of the prosecution that accused has committed rape on the daughter of Jayantibhai aged about 8 years when the said offence was committed.
2. As regards offence of rape my brother has relied on the judgement of the Hon'ble Supreme Court in the case of STATE OF RAJASTHAN VS. OM PRAKASH reported in AIR 2002 SC 2235. In this behalf there are other judgements of the Hon'ble Supreme Court, which according to me, throw flood of light on the offence of rape as well as sentencing the accused.
2.1 I may also refer to the judgement of the Hon'ble Supreme Court in the case of DELHI DOMESTIC WORKING WOMEN'S FORUM VS. UNION OF INDIA & OTHERS reported in (1995) 1 SCC 14 in at para 13 on pages 18-19 the Hon'ble Supreme Court has observed thus:
"We have given our careful consideration to the above. It is rather unfortunate that in recent times, there has been an increase in violence against women causing serious concern. Rape does indeed pose a series of problems for the criminal justice system. There are cries for harshest penalties, but often times such cries eclipse the real plight of the victim. Rape is an experience which shakes the foundations of the lives of the victims. For many, its effect is a long term one, impairing their capacity for personal relationships, altering their behaviour and values and generating endless fear. In addition to the trauma of the rape itself, victims have had to suffer further agony during legal proceedings."
3. In this regard, I rely on the judgement of the Hon'ble Supreme Court in the case of BHUPINDER SHARMA VS. STATE OF HIMACHAL PRADESH reported in 2003 AIR SCW 5493. The first paragraph of the judgement itself shows that the Hon'ble Supreme Court was concerned with enhancement of sentence from 4 years' rigorous imprisonment awarded by the trial Court to 10 years as awarded by the Himachal Pradesh High Court for an offence of rape punishable under Section 376 of the Indian Penal Code. In paragraph 4 of the judgement the Hon'ble Supreme Court has considered the case of the prosecution. It was a question of gang rape. The trial Court sentenced four years' rigorous imprisonment for the offence relatable to Section 376 read with Section 34, IPC on one accused and two years rigorous imprisonment for the offence punishable under Section 342 on some other accused and some of the accused were punished and convicted for rigorous imprisonment for seven years for the offences punishable under Sections 376 and 342 of the IPC.
3A The High Court issued suo-motu notice of enhancement of sentence in respect of appeals filed by the appellant Bhupinder and some other accused. The High Court enhanced the sentence for 10 years. In this connection in para 10 of the judgement on page Nos. 5496-5497 the Hon'ble Supreme Court has observed as under:
3A(i) "The offence of rape occurs in Chapter XVI of IPC.
It is an offence affecting the human body. In that Chapter, there is a separate heading for "Sexual Offence", which encompasses Sections 375, 376, 376A, 376B, 376C and 376D. "Rape" is defined in Section 375. Sections 375 and 376 have been substantially changed by Criminal Law (Amendment) Act, 1983 and several new Sections were introduced by the new Act, i.e. 376-A, 376-B, 376-C and 376-D. The fact that sweeping changes were introduced reflects the legislative intent to curb with iron hand, the offence of rape which affects the dignity of a woman. The offence of rape in its simplest term is "the ravishment of a woman, without her consent, by force, fear or fraud" or as "carnal knowledge of a woman by force against her Will". "Rape" or "Raptus" is when a man that carnal knowledge of a woman by force and against her Will (Co. Litt. 123-b); or as expressed more fully, rape is the carnal knowledge of any woman, above the age of particular years, against her Will; or of a woman child, under that age, with or against her Will (Hale PC 628). The essential words in an indictment for rape are rapuit and carnaliter cognovit; but carnalier cognovit, nor any other circumlocution without the word rapuit, are not sufficient in a legal sense to express rape; 1 Hon. 6, 1a, 9 Edw.
4, 26 a (Hale PC 628). In the crime of rape, "carnal knowledge" means the penetration to any the slightest degree of the organ alleged to have been carnally known by the male organ of generation (Stephen's "Criminal Law" 9th Ed., p. 262). In "Encyclopaedia of Crime and Justice" (Volume 4, page 1356) it is stated...... even slight penetration is sufficient and emission is unnecessary". In Halsbury's Statutes of England and Wales (Fourth Edition) Volume 12, it is stated that even the slightest degree of penetration is sufficient to prove sexual intercourse. It is violation with violence of the private person of a woman-an-outrage by all means. By the very nature of the offence it is an obnoxious act of the highest order.
3A(ii) Para 11 - The physical scar may heal up, but the mental scar will always remain. When a woman is ravished, what is inflicted is not merely physical injury but the deep sense of some deathless shame. An accused cannot cling to a fossil formula and insist on corroborative evidence, even if taken as a whole, the case spoken to by the victim strikes a judicial mind as a probable. Judicial response to human rights cannot be blunted by legal jugglery.
3A(iii) In para 13 of the said judgement the Hon'ble Supreme Court has observed as under:
"It is unfortunate that respect for womanhood in our country is on the decline and cases of molestation and rape are steadily growing. Decency and morality in public and social life can be protected only if Courts deal strictly with those who violate the social norms. Two alternative custodial punishments are provided; one is imprisonment for life or with imprisonment of either description for a term which may extend to ten years. The latter is the minimum, subject of course to the proviso which authorizes lesser sentence for adequate and special reasons."
4 I may also refer to the article of Ramification of Harassment of Women by Meena Rao, Professor, Department of Law, University of Mumbai, Mumbai, published in (2003) Gujarat Law Herald, page 23 (Journal Section) where the learned author of the article referred thus: (on page 24) "Rape is the most reprehensible atrocity committed against a woman. The crime of rape can be regarded as the highest torture inflicted upon virginity, youth, motherhood and womanhood itself. Rape is not only an act of monstrosity against the woman-victim herself but also a crime against the entire society which even attaches a social stigma to her. It causes not only physical torture to the body of the woman but also intrusion upon her mental, psychological and emotional sensitivity, which certainly is irreversible. It is the crudest and sure mode of entirely destroying her personality, self-confidence and self-respect, and throwing her into deep emotional crisis. Rape is, therefore, the most hated crime against the very basic human right and violative of the woman's most fundamental right, namely, the "right to life" guaranteed under Article 21 of the Constitution. In the eyes of psychiatrists, rape is less a sexual offence than an act of aggression aimed at degrading and humiliating women. It is extremely unfortunate that the respect and honour for womanhood is on the great decline and the cases of molestation and rape are on the steady growth in India. Such cases, wherein the very soul of the helpless woman is degraded and injured, must be handled by the courts with utmost sensitivity, high responsibility and strictness towards the rapist to protect decency and morality in public life. A woman, who suffers from tremendous sense of shame for no fault of hers and the endless fear of being shunned or ostracized by society as well as her relatives throughout her life, must be treated with appropriate understanding, and realization that ordinarily a woman would not risk her reputation by levelling a false charge against her own chastity. On the contrary, the tendency usually is to suppress such incident. In addition to the trauma of rape itself, the victim has to undergo further agony during legal proceedings which invariably is a traumatic experience, shaking the foundations of the life of the victim."
CONCLUSION:
5. I have gone through the judgements of the Supreme Court in the case of Bhupinder Sharma Vs. State of Himachal Pradesh (supra), Delhi Domestic Working Women's Forum Vs. Union of Inida & Others (supra), the article by Meena Rao and also the commentary on Law of Crimes, Ratanlal & Dhirajlal, 1998 edited by Mr. Justice C.K. Thakkar (as he was then) on page 1815. I have dealt with the judgements separately because in my view rape is the most grave, brutual and violent crime against woman resulting into life long repercussion. Crimes of violence upon women should be severely dealt with. When an offence of rape is proved, that too on girls of every tender age, the sentence of imprisonment should be imposed with severity. The accused has also raised contention of leniency and lenient sentence.
The accused has committed heinous crime of rape on 8 (eight) year old girl and therefore both the arguments are not available to the accused. The argument of the learned advocate has no substance as per the decision of the Hon'ble Supreme Court which is as follows:-
"The law regulates social interests, arbitrates conflicting claims and demands. Security of persons and property of the people is an essential function of the State. It could be achieved through instrumentality of criminal law. Undoubtedly, there is a cross cultural conflict where living law must find answer to the new challenges and the courts are required to mould the sentencing system to meet the challenges. The contagion of lawlessness would undermine social order and lay it in ruins. Protection of society and stamping out criminal proclivity must be the object of law which must be achieved by imposing appropriate sentence. Therefore, law as a corner-stone of the edifice of order should meet the challenges confronting the society. 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 sysetem, law should adopt the corrective machinery or the deterrence based on factual matrix. By deft modulation of 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 and all other attending circumstances are relevant facts which would enter into the area of consideration."
(SEVAKA PERUMAL VS. STATE OF TAMIL NADU reported in AIR 1991 SC 1463 at para 8 on 1467) "Therefore, undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law and society could not long endure under serious threats. If the courts did not protect the injured, the injured would then resort to private vengeance. It is, therefore, 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 etc."
(para 9 on page 1468 of the said judgement the Again in para 9 on page 1468) 5.1 The above judgement aptly replies to the argument advanced by the learned advocate for the accused. It may be noted that as regards sentence, provisions of Section 376 of I.P.C. impose punishment of imprisonment of either description for a term which shall not be less than seven years but which may be for life or for a term which may extend to ten years. In this case the trial court has given punishment for ten years. A plea for reducing the sentence has been made by the learned advocate for the accused. However, I am of the view that in this type of case the punishment cannot be reduced. In this type of case deterrent punishment may be granted looking to the facts and circumstances of the case. This form of punishment is an offshoot, or a natural consequence of the preceding form of punishment. This is based on the maxim "Justicia est duplex: viz. severe punieset vere pravenives (justice is double i.e. punishing with severity and being really preventive). The objective of this form of punishment is to convey a message to would be offenders by putting fear in them and thereby preventing or restraining them from committing a crime. (Reg. Criminal Trial & Justice (Sentencing Process) by Prof. A. Lakshminath, page 31). While awarding sentence I have considered the offence committed by the accused and the age of the girl, in this case. In view of this, this is a fit case where this type of deterrent sentence is to be given and the submission of the learned counsel for the accused for reducing the sentence is rejected. I confirm the finding of the learned trial judge imposing imprisonment for ten years. In view off the same, I fully agree with the conclusion reached by my brother Mr. Justice K.R. Vyas in dismissing the appeal.