Himachal Pradesh High Court
_________________________________________________________________ vs State Of Himachal Pradesh on 29 October, 2015
Bench: Rajiv Sharma, Sureshwar Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 391/2014 Reserved on: 28.10.2015 .
Decided on: 29.10.2015 _________________________________________________________________ Ravi Kumar ...Appellant Versus State of Himachal Pradesh ...Respondent _________________________________________________________________ Coram:
of Hon'ble Mr. Justice Rajiv Sharma, Judge.
Hon'ble Mr. Justice Sureshwar Thakur, Judge. Whether approved for reporting? 1 Yes.
---------------------------------------------------------------------------------- For the Appellant: rt Mr. Lovneeesh Kanwar, Advocate.
For the Respondent: Mr. M.A. Khan, Additional Advocate General with Mr. P.M. Negi, Deputy Advocate General _________________________________________________________________ Rajiv Sharma, Judge The instant appeal has been instituted against Judgment dated 17.7.2014 rendered by learned Sessions Judge, Shimla-cum-Special Judge (under Protection of Children from Sexual Offences Act, 2012) in Sessions Trial No. 24-S/7 of 2013, whereby appellant-accused (hereinafter referred to as 'accused' for convenience sake), who was charged with and tried for offences under Sections 363, 366-A and 376 of the Indian Penal Code and Section 5(1) and 6 of the Protection of Children from Sexual Offences Act, 2012, was convicted under Section 5(1) and 6 of the Protection of Children from Sexual Offences Act, 2012 and 1 Whether reporters of the local papers may be allowed to see the judgment? .::: Downloaded on - 15/04/2017 19:15:31 :::HCHP 2
sentenced to undergo rigorous imprisonment for 10 years and to pay fine of `5,000/-, in default of payment of fine, to further undergo simple imprisonment for three months. However, he has .
been acquitted for commission of offence under Sections 363, 366- A and 376 of the Indian Penal Code.
2. Case of the prosecution, in a nutshell, is that father of the prosecutrix PW-2 lodged a missing report with the police of that his minor daughter had gone missing since 29.3.2013 when she went to buy washing powder. She did not come back.
Complainant also made efforts to trace her in the neighbourhood rt and relations at Krishna Nagar, Punjab and Delhi. He came to know that his minor daughter had been kidnapped by accused Ravi Kumar on the promise to marry her. Her date of birth was 7.6.1996. Complainant/ father of the prosecutrix alongwith other police officials made efforts to trace her. Prosecutrix was recovered from Bhatinda with accused Ravi Kumar. Prosecutrix was medically examined by Dr. Nishi Sood. She issued MLC Ext.
PW-7/C. Accused was also medically examined by Dr. Nalneesh Verma. He issued Ext. PW-13/A. Investigation was completed and Challan was put up in the Court after completing all the codal formalities.
3. Prosecution has examined as many as 13 witnesses to prove its case against the accused. Accused was also examined under Section 313 CrPC. According to him, he was falsely ::: Downloaded on - 15/04/2017 19:15:31 :::HCHP 3 implicated. Trial Court convicted and sentenced the accused as noticed herein above. Hence, this appeal.
4. Mr. Loveneesh Kanwar, Advocate, has vehemently .
argued that the prosecution has failed to prove its case against the accused.
5. Mr. P.M. Negi, Deputy Advocate General, has supported the judgment of conviction.
of
6. We have heard the learned counsel for the parties and also gone through the record carefully.
7. PW-1 prosecutrix (name withheld) deposed that her rt father was working in IGMC Shimla as a Sweeper. In the last year, she visited the house of her elder sister at Delhi where she met accused Ravi Kumar who was neighbourer of her sister. Accused told her that he wanted to make friendship with her but she refused. Accused brought a mobile phone for her and also a SIM No. 95406 04192 in her name and accused started talking to her on her mobile from his mobile. He assured her to marry her. She came back to Shimla. He continued to talk with her on mobile. On 29.3.2013 accused called her to Old Bus Stand Shimla. She visited Bus Stand Shimla. Accused met her there. He assured her to marry and took her to Ludhiana in Punjab Roadways bus. He took a room and kept the prosecutrix there. Accused used to rape her during night. Accused did not allow her to talk over the mobile phone which was thrown by the accused in water. They stayed at ::: Downloaded on - 15/04/2017 19:15:31 :::HCHP 4 Railway Station Bhatinda. When he ran out of money, accused rang up his uncle and told that he wanted to come to Delhi. Her father and uncle of accused Mohinder alongwith police came to .
Bhatinda. Police brought them to Shimla. Her medical examination was conducted at DDU Hospital, Shimla. Her statement was recorded under Section 164 CrPC which is Ext. PW-
1/B. She was again called for examination. She denied the of suggestion in her cross-examination that she had gone with the accused voluntarily with her own consent. She did not tell anybody in the Bus Stand Shimla that accused was forcing her to rt come with him. She was kept in one room by accused. They came together from Bhatinda to Shimla. She did not narrate the incident to anybody at Bhatinda.
8. PW-2 Raju is the father of the prosecutrix. He deposed that he was working as a Sweeper in IGMC Shimla. He registered a complaint on 29.3.2013, with the police station Sadar, Shimla that his daughter had gone to shop for detergent and she had not come back. Her date of birth was 7.6.1996. He searched for his daughter. He came to know that neighbourer of his elder daughter has taken away his daughter and intended to marry her.
During search on 20.4.2103, uncle of Ravi told over telephone that Ravi Kumar and his daughter were at Bhatinda Railway Station.
He has taken police officials to Bhatinda Railway Station on 22.4.2013. Uncle of the accused was with them. They searched for ::: Downloaded on - 15/04/2017 19:15:31 :::HCHP 5 accused and prosecutrix. They were found at Railway Station. He identified his daughter. Accused and prosecutrix were brought to Sadar Police Station Shimla. Prosecutrix told them that on .
29.3.2013 accused called her at Old Bus Stand Shimla on telephone from where accused has taken her to Ludhiana in Punjab Roadway bus. They stayed at Ludhiana and then went to Bhatinda. Police got medical examination of his daughter. In his of cross-examination, he has deposed that he lodged FIR on the same day when prosecutrix had gone missing. Accused was not known to him. All seizure memos were prepared in the police station.
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9. PW-7 Dr. Nishi Sood has medically examined the prosecutrix. She issued MLC Ext. PW-7/C. Hymen was torn at 3', 6' and 9' clock positions. There was no evidence of inflammation.
Labia Majora/Minora were well built. No evidence of injury marks was found. She opined after receipt of FSL report and medical examination that it was a case of recent sexual intercourse.
10. PW-9 Paramjeet Saini was the Investigating Officer. He deposed that on 22.4.2013, he came to know that accused and prosecutrix were staying somewhere in Bhatinda. He alongwith parents of the prosecutrix proceeded to Bhatinda. Accused and prosecutrix were found at Bhatinda Railway Station. Prosecutrix was medically examined. MLC is Ext. PW-7/C. In his cross-
examination, he deposed that he had inquired about the alleged ::: Downloaded on - 15/04/2017 19:15:31 :::HCHP 6 solemnisation of marriage of accused with prosecutrix however, no evidence in this regard was found.
11. Case of the prosecution, precisely, is that accused has .
taken away PW-1 on 29.3.2013 from Old Bus Stand Shimla to Ludhiana. Thereafter, on 20.4.2013, accused has taken her from Ludhiana to Bhatinda. Accused had hired a room and in the night committed rape upon her. PW-2 has corroborated statement of of Raju. He also deposed the manner in which accused and prosecutrix were recovered from Bhatinda Railway Station and brought to Shimla. He had handed over the birth certificate of his rt daughter Ext. PW-2/C, which was taken into possession vide seizure memo Ext. PW-2/D. It has come in the MLC Ext. PW-7/C that hymen was torn at 3', 6' and 9' clock position. No evidence of injury marks was found. Human semen and human blood was detected on Ext. P1/vaginal swabs and underwear of the prosecutrix. Human semen was detected on Ext. P4, Salwar of the prosecutrix. According to her, recent sexual intercourse has taken place. Prosecutrix was 16 years, 9 months and 22 days of age at the time of occurrence as per Ext. PW-2/C. Production of birth certificate has not been objected to by the accused. She has gone missing from 29.3.2013. She was recovered on 22.4.2013 from Railway Station Bhatinda. It is evident from the evidence that prosecutrix has gone voluntarily with the accused from Shimla to Ludhiana. Thus, accused has rightly been acquitted of offence ::: Downloaded on - 15/04/2017 19:15:31 :::HCHP 7 under Sections 363, 366-A. Since prosecutrix was more than 16 years of age, he has rightly been acquitted of offence under Section 376 IPC. However, fact of the matter is that since .
prosecutrix was 16 years, 9 months and 22 days of age at the time of offence, accused has rightly been convicted under Section 5(1) and 6 of the Protection of Children from Sexual Offences Act, 2012. It has come in her statement that she was repeatedly raped of by the accused. This fact has been duly corroborated by Dr. Nishi Sood PW-7. Human semen and blood was detected on the vaginal swabs as well as underwear of the prosecutrix Ext. 4B. As rt discussed herein above, there was evidence of recent sexual intercourse which has taken place with the prosecutrix.
12. Their Lordships of the Hon'ble Supreme Court in Phul Singh v. State of Haryana reported in (1979) 4 SCC 413, have held that the accused who was 22 years of age having no previous criminal incidents save this offence and has a young wife and a farm to look after, he could be given correctional courses through meditational therapy and other measures his erotic aberration may wither away. A man like the appellant has a reasonable prospect of shaping into a balanced person, given propitious social environs, curative and congenial work and techniques of internal stress release or of reformatory self expression. Their lordships have held as under:
::: Downloaded on - 15/04/2017 19:15:31 :::HCHP 8[4] A hyper-sexed homo sapien cannot be habilitated by humiliating or harsh treatment, but that is precisely the perversion of unreformed Jail Justice which some criminologists have described as the crime of punishment. This .
Court has held, in Sunil Batra's case, (AIR 1978 SC 1675), and later that, constitutionally viewed, punitive deprivation of personal freedom must be goal-oriented and humanely restorative, apart from being deterrent. The insulated years behind the insensitive bars must possess a hospital setting if correction is a social purpose, as Gandhiji often insisted. In-
of prison treatment must, therefore, be geared to psychic healing, release of stresses, restoration of self-respect and cultural normalisation, apart from training to adapt oneself to the life rt outside. The functional failure of our pachydermic prison projects, exacerbated by its tension and trauma on the one hand and the reverse ethos inside on the other, deserves judicial cognisance. The current efforts of Governments, Central and State, to reform jail regimen, we hope, will give a better deal to the caged community. For these reasons, in this case, we deem it desirable to superadd to the sentence of imprisonment a few directives to ensure that the carceral period reforms the convict.
[5] The appellant is not a 'habitual' and has no vicious antecedents except this fugitive, randy molestation which is bad enough in a society where women are often socially weak and sexually victimised. It may be marginally extenuatory to mention that modern Indian conditions are drifting into societal permissiveness on the carnal front promoting proneness to pornos in life, what with libidinous 'brahmacharis', womanishing public men, lascivious dating and mating by unwed students, sex explosion in celluloid and book stalls and corrupt morals reaching a new 'high' in high ::: Downloaded on - 15/04/2017 19:15:31 :::HCHP 9 places. The unconvicted deviants in society are demoralisingly large and the State has, as yet, no convincing national policy on female flesh and sex sanity. We hope, at this belated hour, the Central Government will defend Indian womanhood by .
stamping out voluptuous meat markets by merciless criminal action. Isolated prosecutions and annual suppression rhetoric will stultify the law where the vice is widespread and the larger felons are often let loose.
[6] the reflection apart, we must, as part of the sentencing package, design a curative course for this prisoner to rid him of of his aphrodisiac overflow and restore him into safe citizenship.
[7] He is a youth barely 22 with no criminal antecedents save rt this offence. He has a young wife and a farm to look after. Given correctional courses through meditational therapy and other measures his erotic aberration may wither away. A man like the appellant has a reasonable prospect of shaping into a balanced person, given propitious social environs, curative and congenial work and techniques of internal stress release or of reformatory self expression.
13. Their Lordships of the Hon'ble Supreme Court in T.K. Gopal alias Gopi v. State of Karnataka reported in (2000) 6 SCC 168, have held that those who commit rape are psychologically sadistic persons exhibiting this tendency in the rape forcibly committed by them. In some States in U.S.A., therefore, emphasis was laid on psychotherapic treatment of the offender while he was under detention. In the matter of punishment for offence committed by a person, there are many approaches to the ::: Downloaded on - 15/04/2017 19:15:31 :::HCHP 10 problem. On the commission of crime, three types of reactions may generate; the traditional reaction of universal nature which is termed as punitive approach. It regards the criminal as a .
notoriously dangerous person, who must be inflicted severe punishment to protect the society from his criminal assaults. The other approach is the therapeutic approach. It regards the criminal as a sick person requiring treatment, while the third is of the preventive approach which seeks to eliminate those conditions from the society which were responsible for crime causation. Their lordships have held as under:
rt [13] In the matter of punishment for offence committed by a person, there are many approaches to the problem. On the commission of crime, three types of reactions may generate; the traditional reaction of universal nature which is termed as punitive approach. It regards the criminal as a notoriously dangerous person who must be inflicted severe punishment to protect the society from his criminal assaults. The other approach is the therapeutic approach. It regards the criminal as a sick person requiring treatment, while the third is the preventive approach which seeks to eliminate those conditions from the society which were responsible for crime causation. [14] Under the punitive approach, the rationalisation of punishment is based on retributive and utalitarian theories. Deterrent theory which is also part of the punitive approach proceeds on the basis that the punishment should act as a deterrent not only to the offender but also to others in the community.
[15] The therapeutic approach aims at curing the criminal tendencies which were the product of a diseased psychology.::: Downloaded on - 15/04/2017 19:15:31 :::HCHP 11
There may be many factors, including the family problems. We are not concerned with those factors as therapeutic approach has since been treated as an effective method of punishment which not only satisfies the requirements of law .
that a criminal should be punished and the punishment prescribed must be meted out to him, but also reforms the criminal through various processes, the most fundamental of which is that in spite of having committed a crime, may be a heinous crime, he should be treated as a human being entitled to all the basic human rights, human dignity and human of sympathy. It was under this theory that this Court in a stream of decisions, projected the need for prison reforms, the need to acknowledge the vital fact that the prisoner, after being lodged rt in jail, does not lose his fundamental rights or basic human rights and that he must be treated with compassion and sympathy (See : Sunil Batra (I) v. Delhi Administration, AIR 1978 SC 1675 : (1978) 4 SCC 494 : 1979 (1) SCR 392 : (1978 Cri LJ 1741); Sunil Batra (II) v. Delhi Administration, AIR 1980 SC 1579 : (1980) 3 SCC 488 : 1980 (2) SCR 557 : (1980 Cri LJ 1099); Charles Sobraj v. Superintendent, Central Jail, Tihar, AIR 1978 SC 1514 : (1978 Cri LJ 1534) and Francis Coralie Mullin v. The Administrator, Union Territory of Delhi, (1981) 1 SCC 608 : AIR 1981 SC 746 : 1981 (2) SCR 516 : (1981 Cri LJ 306) etc.).
[16] Sexual offences, however, constitute an altogether different kind of crime which is the result of a perverse mind. The perversity may result in homosexuality or in the commission of rape. Those who commit rape are psychologically sadistic persons exhibiting this tendency in the rape forcibly committed by them.
[17] In some States in the USA, therefore, emphasis was laid on psychotherapic treatment of the offender while he was under detention. For that purpose, Psychopath Sexual ::: Downloaded on - 15/04/2017 19:15:31 :::HCHP 12 Offenders Laws have been enacted in certain jurisdiction in USA. These laws treat the sex offenders as neurotic persons and psychotherapic treatment is given to them during the period of their detention which may, in some cases, be an .
indefinite period, in the sense that they would not be released till they are cured. But the provision for indefinite detention even beyond the maximum period of imprisonment for that offence was seriously objected to by a group of lawyers and, therefore, in many of the States, this provision was dropped from the Statute.
of [18] Here, in India, statutory provision for psychotherapic treatment during the period of incarceration in the jail is not available in India, but reformist activities are systematically rt held at many places with the intention of treating the offenders psychologically so that he may not repeat the offence in future and may feel repentant of having committed a dastardly crime.
14. Their Lordships of the Hon'ble Supreme Court in Karamjit Singh v. State (Delhi Admn.) reported in AIR 2000 SC 3467, have held that punishment in criminal cases is both, punitive and reformative. The purpose is that the person found guilty of committing the offence is made to realise his fault and is deterred from repeating such acts in future. The reformative aspect is meant to enable the person concerned to relent and repent for his action and make himself acceptable to the society as a useful social being. Within the parameters of law, an attempt has to be made to afford an opportunity to the individual to reform himself and lead life of a normal, useful member of society and make his contribution to in that regard . denying such opportunity ::: Downloaded on - 15/04/2017 19:15:31 :::HCHP 13 to a person who has been found to have committed offence in the facts and circumstances placed on record would only have a hardening attitude towards his fellow beings and towards society .
at large. Their lordships have held as under:
[7] The punishment prescribed under Ss. 3, 4 and 6 of the TADA Act are imprisonment for a term of not less 5 years to life imprisonment and also fine. On a reading of these statutory provisions it is manifest that the Parliament has of considered the culpability dealt with in these provisions as serious threats to society and the country, and, therefore, has provided stringent punishment for the offences. Punishment in criminal cases is both punitive and reformative. The purpose rt is that the person found guilty of committing the offence is made to realise his fault and is deterred from repeating such acts in future. The reformative aspect is meant to enable the person concerned to relent and repent for his action and make himself acceptable to the society as a useful social being. In determining the question of proper punishment in a criminal case the Court has to weight the degree of culpability of the accused, its effect on others and the desirability of showing any leniency in the matter of punishment in the case. An act of balancing is what is needed in such a case, a balance between the interest of the individual and the concern of the society weighing the one against the other. Imposing a hard punishment on the accused serves a limited purpose but at the same time, it is to be kept in mind that relevance of deterrent punishment in matters of serious crimes affecting society should not be undermined. Within the parameters of the law an attempt has to be made to afford an opportunity to the individual to reform himself and lead life of a normal, useful member of society and make his contribution in that regard.::: Downloaded on - 15/04/2017 19:15:31 :::HCHP 14
Denying such opportunity to a person who has been found to have committed offence in the facts and circumstances placed on record would only have a hardening attitude towards his fellow beings and towards society at large. Such a situation, .
has to be avoided, again within the permissible limits of law.
15. A Division Bench of the Delhi High Court in Jagdish v. State (Govt. of NCT of Delhi) reported in 2006 Crl. L.J. 408, have held that the accused was a youth of 19 years of age without of any previous criminal record. His conduct in Jail was also satisfactory. Sentence of life imprisonment was reduced to 10 rt years. The Division Bench has held as under:
[8] We have considered the matter in the light of the facts and circumstances, namely, that Jagdish/accused is a youth of 19 years without any previous criminal record. There is nothing on record available to indicate any propensity of crime on the part of the appellant. In these circumstance, it cannot be presumed that Jagdish /accused is not capable of being reformed after going through a substantive sentence. His conduct in jail so far where he has undergone about more than five years of sentence has been satisfactory. The appellant was sentenced to life imprisonment which would mean imprisonment for indefinite period till death unless there is commutation of sentence under Section 433 Cr. P. C. [9] In these circumstances, even though the appellant had committed rape in a gruesome manner exploiting his acquaintance with a minor girl, we are of the view that the ends of justice would be met on account of factors noted in Para 8 above, by awarding the appellant 10 years sentence of rigorous imprisonment.::: Downloaded on - 15/04/2017 19:15:31 :::HCHP 15
16. In this case also, accused was 18 years of age at the time of commission of offence. He has no criminal background. His .
conduct in the Jail is satisfactory since nothing adverse has been brought to our notice by the State.
17. The accused has been convicted and sentenced to rigorous imprisonment for ten years with a fine of `5,000/-.
of Accused, at the time of recording his statement under Section 313 CrPC, on 20.1.2014, was 19 years of age and at the time of commission of offence was 18 years of age.
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18. It has come in the statement of the prosecutrix that accused has taken away her from Shimla to Ludhiana and then to Bhatinda to marry her. She was in constant contact with the accused. Her statement was recorded under Section 164 CrPC vide Ext. PW-1/B by Judicial Magistrate 1st Class, Court No. 5, Shimla. She deposed in her statement that she wanted to live with accused. She wanted to marry him when she attains the age of 18 years. She has gone with the accused on her own volition. He was not guilty. Statement was recorded strictly in accordance with law and voluntarily by the prosecutrix. Thus, taking into consideration the statement made under Section 164 CrPC, Ext. PW-1/B, and other attending circumstances, as noticed herein above, sentence imposed by the accused if is reduced to four years, it will enable ::: Downloaded on - 15/04/2017 19:15:31 :::HCHP 16 him to reform himself. On the other hand, if the accused is kept for ten years in jail, he may become a hardened criminal.
19. In view of the discussion and analysis made .
hereinabove, the present appeal is partly allowed. The sentence imposed vide Judgment dated 17.7.2014 rendered by learned Sessions Judge, Shimla-cum-Special Judge (under Protection of Children from Sexual Offences Act, 2012) in Sessions Trial No. 24- of S/7 of 2013, is reduced to rigorous imprisonment for 4 years instead of 10 years alongwith a fine of `5,000/-, and in default of payment of fine, to further undergo simple imprisonment for three rt months.
(Rajiv Sharma) Judge (Sureshwar Thakur) Judge October 29, 2015 vikrant ::: Downloaded on - 15/04/2017 19:15:31 :::HCHP IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 391/2014 Reserved on: 28.10.2015 .
_________________________________________________________________ Ravi Kumar ...Appellant Versus State of Himachal Pradesh ...Respondent
---------------------------------------------------------------------------------- Judgment for consideration please.
of (Justice Rajiv Sharma) Judge I agree/I do not agree.
rt (Justice Sureshwar Thakur)
Judge
List for pronouncement of judgment on 29.10.2015.
(Justice Rajiv Sharma) Judge Court master ::: Downloaded on - 15/04/2017 19:15:31 :::HCHP