Madhya Pradesh High Court
Komalchand vs State Of M.P. on 29 February, 2000
Equivalent citations: 2000(3)MPHT275
Author: Arun Mishra
Bench: Arun Kumar Mishra, Arun Mishra
JUDGMENT Arun Mishra, J.
1. Appellant Komalchand who was a police constable has been convicted for an offence under Section 376, I.P.C. and sentenced to R.I. for seven years and fine of Rs. 5,000/-, and in default of payment of fine to undergo further R.I. for one year. Out of the amount of fine, Rs. 4,000/- has been ordered, to be paid to prosecutrix Neeta Khare.
2. In all two persons were put. to trial, namely, Nandkishore and Komalchand. The charge against the accused persons was commission of offences under Sections 366 and 376 of the Indian Penal Code. According to the prosecution, Ku. Neeta Khare was aged 16-17 years at the relevant time and was a student of Class XI in the Maharani Laxmibai Higher Secondary School, Sagar. Sister of co-accused Nandkishore was friend of Neeta Khare and Neeta and Nandkishore knew each other. On 25th of April, 1985 prosecutrix Neeta Khare went to give, the examination but did not come back to the house. According to the prosecution case, she was given some intoxicant and was abducted by the accused persons. She was initially taken from Sagar to Barman Ghat, then to Bhopal and thereafter to Ujjain. At Ujjain she was kept in the house of Ramkunwarbai (P.W. 3) where forcible sexual intercourse was committed with her.
3. Father of the complainant/prosecutrix, Badri Prasad Khare, was teacher in a Municipal Higher Secondary School. Neeta was his elder daughter. As per school certificate her date of birth is 9-6-1968. The incident took place on 25-4-1985. Thus, according to the prosecution she was below 17 years of age on the said date. Co-accused Nandkishore was a neighbour of Badri Prasad and his sister Satyawati used to visit Neeta. Hence friendship developed between Nandkishore and Neeta.
4. When Neeta did not come back from school after giving examination on 25-4-1985, a report of missing was lodged by Badri Prasad (P.W. 5) which is on record as Ex. P-13. On the said date, Assistant Sub-Inspector of Police Shri Parihar of Police Station Dewas Gate was informed by an informant at Ujjain that one minor girl was abducted and was kept in Room No. 11 in the colony of Heera Mill, Ujjain and effort was being made to take away in a bus to some other place. On this information he went with the police force to bus stand Ujjain and Neeta was caught along with the accused persons at the bus stand. On the basis of information furnished by Neeta Khare, Sagar police was contacted and it was found that an offence under Section 366 I.P.C. was registered at Police Station Gopalganj, Sagar on the report lodged by Neeta's father. Thereafter, Neeta was sent for medical examination and she was medically examined on 29-4-1985.
5. The police on investigation found that accused Nandkishore and accused Komalchand who happened to be constables were friends and Nandkishore was having prior friendship with Neeta Khare. It was also alleged by the prosecution that Nandkishore had performed sexual intercourse with Neeta Khare earlier to the date of incident of her abduction. On 25th April, 1985 both the accused reached the school where the prosecutrix was studying and accused Nandkishore told her that her friends were calling her behind the school. Thereafter, on the point of knife Nandkishore asked her to sit in the auto-rikshaw along with accused Komalchand. One letter Ex. P-12 and Rs. 200/- were given by accused Nandkishore to Komalchand. The prosecutrix was then taken to Makronia square from where the prosecutrix and accused Komalchand boarded a bus going to Barman Ghat. From Barman Ghat she was taken to Bhopal where they stayed in the night and in the morning they went to Ujjain. At Ujjain she was kept in Room No. 11 of Heera Mill Colony which belonged to Ramkunwarbai who was sister-in-law of accused-appellant Komalchand. Neeta was kept there from 26th April to 29th April. It is alleged that in the nights of 26th and 27th April accused Komalchand performed forcible sexual intercourse with Neeta Khare. On 28-4-85 Nandkishore also reached Ujjain and met Ramkunwarbai (P.W. 3). Ramkunwarbai objected to the act of the accused and thus Neeta was taken to the bus stand at about 9 p.m. on 28th April, 85 and in suspicious circumstances the accused and the prosecutrix were taken into custody by the police.
6. The underwear of accused Komalchand was recovered vide seizure memo Ex. P-5. During medical examination of prosecutrix Neeta, her vaginal slides were retained and sent for chemical examination. The report of chemical analyst confirmed the presence of semen and human spermatozoa on Article A, underwear of the accused, Article B, underwear of the prosecutrix and Articles C-1 and C-2, vaginal slides. From R.K. Studio, Sagar photograph Ex. P-7 and its negative were recovered which constable Nandkishore is said to have obtained at the point of knife.
7. As to the age of the prosecutrix, vide seizure memo Ex. P-3 copy of school certificate Ex. P-4 was recovered, the original of which is Ex. P-9. Letter Ex. P-12 which accused Nandkishore had handed over to Komalchand, the present appellant, while he was going to Ujjain along with the prosecutrix was recovered from the prosecutrix. The ossification test of Neeta was got conducted. The radiologist's report is Ex. P-16. The medical report of the prosecutrix is Ex. P-15. Medical report Ex. P-15 and X-ray report Ex. P-16 were accepted by the accused on 1-1.2-1987 and these documents were marked as admitted documents. This fact has been mentioned in Para 6 of the judgment of the trial Court. Statement of Neeta was recorded under Section 164 Cr.P.C. on 1st of May, 85 which is Ex. D-3 on record.
8. Both the accused persons abjured the guilt and contended that prosecutrix Neeta was not a girl of good character. She had run away on earlier occasions once or twice from the house. She was having love affair with accused Nandkishore for the past 2-3 years. Letters Exs. D-5 to D-46 were written by her to Nandkishore. There were certain photographs Ex. D-7 and Arts. A to H which go to show that Neeta was having love affair with Nandkishore. At the relevant time Nandkishore was at Police Station Gopalganj. After the report was lodged, T.I. had asked him to go to Ujjain for recovery of the girl. While he had gone to Ujjain, he was caught by the Ujjain police. In defence one witness was examined, namely, Mangal Prasad (D.W. 1).
9. Accused Komalchand suggested that the prosecutrix had gone with him, she was aged 19-20 years at the relevant time, he was constable at Police line Ujjain and he was on duty at the D.I.G. Bungalow. On coming to know that his friend Nandkishore was in custody he went to Dewas Gate Police Station where the T.I. took him also into custody. He examined constable Awantilal (D.W. 2) and Rajendra Kumar Benjamin (D.W. 2) in his defence.
10. The important point for determination so as to find out the guilt of the accused persons is what was the age of the prosecutrix on 25-4-1985. From the prosecution evidence, it is apparent that in Ex. P-4, the date of birth of Neeta Khare is mentioned as 9-6-1968. Thus, she was aged 16 years 10 months and 16 days on the date of the incident. On 1-12-1987 the report of Radiological examination of Neeta was accepted by the accused persons as admitted document and was marked by the Court as Ex. P-16. It has been mentioned in Ex. P-16 that "epiphysis of upper end radius and olecranon process fused hence age over 15 years; epiphysis of lower end radius and ulna fused hence age over 17 years; epiphysis of iliac crest not fused hence age below 19 years."
11. The trial Court has taken the view that Neeta has been proved to be 1.8 years of age, hence offence of kidnaping is not made out and charge under Section 366A was not framed. The doctor who gave opinion regarding age was not examined in the case for the reason that the accused had accepted the Radiologist's medical opinion. It may be seen that in the case of Jaya Mala v. Home Secy., Govt. of J & K (AIR 1982 SC 1297), it has been held that in the case of radiological test, margin of error in age ascertained is two years on either side. In the present case, there was absolutely nothing on record to discard the version of the father of the prosecutrix that her date of birth was 9-6-1968. Thus, the school certificate has been wrongly discarded by the trial Court.
12. Badri Prasad Khare (P. W. 5) is father of the prosecutrix. His age is recorded as 45 years. He stated that his marriage took place on 17th June, 1965 and after about three years, Neeta was born on 9-6-1968. Neeta was student of Class XI and was appearing in the examination of Class XI as a private candidate. He had produced the original school certificate as Ex. P-9. Its photo copy was also placed on record. The original certificate was compared with the photo copy and the original was returned to the witness. He has deposed in Paragraph 3 that the date of birth mentioned in the certificate was correct and in the High School Examination Certificate also Neeta's date of birth was recorded as 9-6-1968. He has further deposed in Para 9 that Neeta failed only once in 1984 in Higher Secondary. Thereafter she appeared as a private candidate in the year 1985 when the incident took place. He further stated that he has two other daughters, name of the second daughter is Maya and third daughter is Sangeeta. They are respectively born in 1970 and 1972. A son was also born to him on 27th January, 1975. The witness had also brought one diary which he had maintained from the year 1965 and he has deposed with reference to the dates of birth of his children recorded in the said diary. He deposed that both the accused persons were police constables and he had lodged a report to the police that Nandkishore was harassing his daughter for the last about 6 months. He has deposed in Paragraph 11 that he had disclosed the age of Neeta to the police to be about 17 years. In Paragraph 17 he has deposed that Neeta was admitted in Class I in Itwari Tori Primary School and he had shown that document to the Court while, he was deposing. He has denied the suggestion that he got recorded the date of birth of his daughter one and half years less.
13. The deposition of father of the prosecutrix is very much natural and is supported by several documents and there is nothing to disbelieve the school certificate, original mark-sheet of Board Examination, etc. It is, therefore, held that the date of birth of Neeta was 9-6-1968 and on the date of incident she was aged 16 years, 10 months and 16 days,
14. Neeta Khare is the only witness in the case who could depose; as to what had actually happened with her. She lias been examined as P.W. 6, Her statement was recorded under camera proceeding. She has deposed that her date of birth was 9th June, 1968 and she had appeared in Class XI examination in the capacity of private candidate. She was a regular student of Girls School and had passed VIII class examination from Middle School, Katra, Sagar of which certificate was issued to her. Accused Nandkishore was her neighbour. Satyawati took her to R.K. Studio where she met Nandkishore. Satyawati, sister of Nandkishore, went in a different room and accused Nandkishore performed sexual intercourse with her in the photo studio. She further deposed that on 24-5-85 i.e. on the date of her abduction she had gone to the school with Alka to appear in the examination. At about 10.30 she came out of the school. Next day she was having the practical and as such she was collecting some money. About 8-10 girls were also sitting together. Accused Nandkishore came over there and told her that her friends were calling her behind the school. She went behind the school. Nandkishore took out a knife and asked her to sit in the auto in which accused Komalchand was already sitting. She was initially taken to Civil Lines and then-after to Makronia Chouraha. Then she was taken in a bus which was going to Barman. Accused Komal took her down at Barman. Thereafter they boarded another bus for Bhopal. They reached Bhopal at about 10-11 p.m. and stayed in a waiting room. Thereafter took her in a bus to Ujjain where they reached at about 3,30 p.m. At Ujjain she was taken to the house of sister-in-law of Komalchand who resided at Heera Mill Colony where on 26-4-85 and 27-4-85 day and night accused Komalchand performed sexual intercourse with her against her will. On 28th accused Nandkishore also came and objection was raised by the sister-in-law of Komalchand. Then she was taken out of the room and accused Komal was also accompanying. At that time police came and took the prosecutrix and the accused persons into custody. She further deposed that when Nandkishore asked her to sit in the auto, one letter and some money were handed over to Komal by Nandkishore. One more letter written by Nandkishore was handed over to her by accused Komal at Ujjain which was handed over by her to the police. The said letter is marked as Ex. P-12.
15. The prosecutrix in his deposition has denied the suggestion that her age was 19-20 years. She has further denied that when she was admitted in the school she was eight years old. She has staled that accused Nandkishore had performed sexual intercourse with her when she had gone to his house for taking a book from his sister. She denied the suggestion that she had gone to Ujjain alone. She has deposed in Para 10 that accused Komalchand accompanied her and Nandkishore had paid some amount to Komal. She has admitted that she had written letters Ex. D-5 to D-45 to accused Nandkishore. Ex. D-46 card also she admitted that she had purchased and handed over to Nandkishore. From her deposition it, appears that she was having a love affair with Nandkishore and Nandkishore had asked Komalchand to take her to Ujjain. As a matter of fact, accused Nandkishore and accused Komalchand, both holding the post of Constable in the police, had abducted the girl who was aged below 18 years and had removed her from the guardianship of her parents. It is unfortunate that accused Nandkishore has been acquitted by the Court below discarding the certificate of age and it does not. appear that any appeal has been filed by the State against his acquittal.
16. It may be further seen that accused Komal had taken the full advantage of the situation of the love affair of Nandkishore and Neeta. She was a student of Class XI and aged below 17 years. She was taken to Ujjain and was kept in the house of Ramkunwarbai. Ramkunwarbai has been examined as P.W. 3. She was in the relation of appellant Komalchand and obviously did not support the prosecution case and was declared hostile. However, she stated that the girl had come to her house and stayed for a few days and the girl had told her that she had come to appear in the examination. Thus, from the deposition of Ramkunwarbai it is clear that Neeta was taken from Sagar to Bhopal and then to Ujjain where she was kept in the house of Ramkunwarbai for three days. There is absolutely nothing to disbelieve the version of the prosecutrix that Komalchand had performed sexual intercourse with her. Though she was having affair with Nandkishore, but accused Komalchand exploited the situation and committed forcible sexual intercourse with her. The act of appellant Komalchand of commission of offence of rape has been found to be proved by the learned Court below. This fact was further corroborated by the medical evidence produced in the case. There was presence of semen and human spermatozoa over the underwear of prosecutrix Neeta and also that of accused Komalchand. On the vaginal slides of the prosecutrix presence of human spermatozoa was confirmed by Chemical Analyst. It is thus clear that sexual intercourse was performed with her at Ujjain and at that time only accused Komalchand had accompanied her and she has deposed that Komalchand had committed sexual intercourse with her against her wish.
17. Learned counsel for the appellant submitted that it was a case of consent and with consent of the prosecutrix appellant may have committed sexual intercourse with her. It does not appear that Neeta was having any prior relationship with accused Komalchand. She was enticed away at the instance of constable Nandkishore as she was having some affair with him. Both the police constables have acted most irresponsibly.
18. It is further to be seen that Dilbahadur Singh who has been examined in the case as P.W. 11 has deposed that he was informed by accused Nandkishore on enquiry on 27-5-1985 at about 2 a.m. that the girl may be found in Ujjain. Thereafter T.I. Gopalganj asked accused Nandkishore to inform T.I. Motinagar and he was asked to help in recovery of the girl. It appears that the police has not acted with responsibility which is apparent from the deposition of Dilbahadur Singh. Thereafter, accused Nandkishore had gone to Ujjain where the police recovered the girl and both the accused were taken into custody.
19. Dr. R.K. Shastri has been examined as P.W. 12. He has deposed that accused Komalchand was found capable of performing sexual intercourse. He found that on the private part of the accused smegma was not found which also corroborates the case of the prosecutrix that accused Komalchand had performed sexual intercourse with her.
20. On behalf of the accused one Mangal Prasad, father of accused Nandkishore, was examined as D.W. 1. He has deposed as to the age of her own daughter Satyawati and Anita. The evidence of Mangal Prasad is absolutely of no value as age of Satyawati and Anita were not relevant in the instant case. Awantilal has been examined as D.W. 2. He stated that he was a constable at Police Station Mahidpur District Ujjain. He has deposed that in April 85 he was on duty at D.I.G. Bungalow at Ujjain. Accused Komalchand was also on duty from 8 a.m. to 12 noon and from 4 p.m. to 8 p.m. at the bungalow of D.I.G. He deposed that on 29- 4-85 he had gone to Police Station Dewasganj along with accused Komal in Order to find the whereabouts of constable Nandkishore. Then accused Komal was detained at the Police Station. He deposed that accused Komal was not on leave on any day in the month of April, and as accused Komal belonged to Sagar he was also taken into custody along with Nandkishore. According to this witness Nandkishore had brought the girl to Ujjain and, not accused Komal. He further deposed that D.I.G. had a talk with the T.I. but the witness could not say what the deliberation was. He has stated that duty record was maintained at the police line but no such duty record was produced. If the accused was on duty at the D.I.G. bungalow and the D.I.G. had talked to the T.I. the accused would not have been arrested at all by the police of Ujjain itself. The facts unveiled by Awantilal go to show that accused Komal and Nandkishore both belonged to Sagar and they were friends and there is every possibility that accused Komal had gone to Sagar and brought the girl to Ujjain. Thus, the evidence of Awantilal (D.W. 2) corroborates the prosecution version.
21. R.K. Benjamin, Station House Officer, Ujjain was examined as D.W. 3. He has deposed that the attendance of constables who are on duty at the officers' bungalow is not marked in the register. It depends upon the officer concerned with whom the constable is placed for duty how much duty he has to take from the constable assigned to him. The witness had brought with him Rojnamcha Sanha of police line Ujjain. On 29-4-85 accused Komalchand was found absent. The witness had brought the entry only of 29-4-85, he had not brought the entries from 25-4-85 to 28-4-85 which were ordered to be produced by the Court and the witness was further examined on 26th September, 1988. In Paragraph 3 he deposed that, from 25-4-85 to 28-4-85 there was no entry in the Rojnamcha Sanha with respect to accused Komalchand. Thus the absence of entry with respect to Komalchand from 25-4-85 to 28-4-85 goes to show that he was not present otherwise his presence would have definitely been mentioned in the Rojnamcha Sanha. This fact also goes against the appellant.
22. In the case of commission of offence of rape, version of the prosecutrix stands at par with that of an injured witness. See : the following observations of the Supreme Court in Bharwada Bhoginbhai Hirjibhai v. State of Gujarat (AIR 1983 SC 753) :--
"On principle the evidence of a victim of sexual assault stands on par with evidence of an injured witness. Just as a witness who has sustained an injury (which is not shown or believed to be self inflicted) is the best witness in the sense that he is least likely to exculpate the real offender, the evidence of a victim of a sex-offence is entitled to great weight, absence of corroboration notwithstanding. And while corroboration in the form of eye-witness account of an independent witness may often be forthcoming in physical assault cases, such evidence cannot be expected in sex-offences, having regard to the very nature of the offence. It would, therefore, be adding insult to injury to insist on corroboration drawing inspiration from the rules devised by the Courts in the Western World. If the evidence of the victim does not suffer from any basic infirmity, and the 'probabilities-factor' does not render it unworthy of credence, as a general rule, there is no reason to insist on corroboration except from the medical evidence, where having regard to the circumstances of the case, medical evidence can be expected to be forthcoming subject to the following qualification. Corroboration may be insisted upon when a woman having attained majority is found in a compromising position and there is a likelihood of her having levelled such an accusation on account of the instinct of self-preservation. Or when the 'probabilities-factor' is found to be out of tune."
23. The learned counsel for the appellant has submitted that the girl was of loose character and she was having an affair with other co-accused Nandkishore who has been acquitted, hence she might have committed sexual intercourse, if any, with the present appellant. In State of Punjab v. Gurmit Singh (AIR 1996 SC 1393) it has been held that casting of stigma on the character of the prosecutrix is a depricable practice. There is need to use self-restraint by Courts while recording such findings which have repercussions so far as the future of the victim of the sex crime is concerned 2nd even wider implications on the society as a whole - where the victim of crime is discouraged - the criminal encouraged and the crime gets rewarded. In the present case, even if the victim was having some love affair with Nandkishore, that would not mean that she was of "loose moral character".
24. In the case of Gurmit Singh (supra), it has been laid down that seeking corroboration of the statement of prosecutrix before relying upon the same as a Rule in such a case amounts to adding insult to injury. It was observed by Dr. Justice A.S. Anand (as His Lordship then was) that - why should the evidence of a girl or a woman who complains of rape or sexual molestation be viewed with dount, disbelief or suspicion ? There is no requirement of law to insist upon corroboration of her statement to base conviction of an accused. The evidence of a victim of sexual assault stands almost at par with the evidence of an injured witness and to an extent is even more reliable. Corroborative evidence is not an imperative component of judicial credence in every case of rape. Corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under given circumstances. It must not be overlooked that a woman or a girl subjected to sexual assault is not an accomplice to the crime but is a victim of another person's lust and it is improper and undesirable to test her evidence with certain amount of suspicion. In the present case, the prosecutrix was a young school-going girl and she was subjected to allurement and thereafter she was taken to Ujjain by the appellant and subjected to rape. Thus the appellant who is a police constable has behaved in a most unhuman manner.
25. In the present case, it is clear that the prosecutrix was a school-going girl. She was a minor and had not seen the world and its realities and her dreams of life were nipped in the bud. The offence has left a permanent scar in her for the entire life. She could have come out some physical assault, but rape has the effect of drenching a woman's personality and casting stigma and dent throughout her life. Women in our country are placed at a higher pedestrial and an offence against womanhood is the most sinister offence. No amount of monetary compensation may be enough for a victim of such an offence. In Delhi Domestic Working Women's Forum v. Union of India [(1995) 1 SCC 14], while laying down guidelines, the Supreme Court was compelled to observe thus:
"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 criminal justice system. There are cries for harshest penalties, but often times such cries eclipse the real plight of the victim. 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."
The Supreme Court in Delhi Domestic Working Women's Forum (supra) has further pointed out the defects in the existing system. The first defect pointed out is that the complainants are handled roughly and are not given such attention which is warranted. The victims, more often than not, are humiliated by the police. In the instant case, a police constable (the appellant) himself is the accused. The prosecutrix had to undergo traumatic experience of trial the ordeal of which is worst than rape itself. In paragraph of the aforesaid decision, the Supreme Court has laid down the parameters in assisting the victim of rape. It was laid down that legal representation should be provided to the victim of rape. It was further laid down that the victim's advocate would explain to the the victim the nature of proceedings and would provide her help of different nature such as mind counselling or medical assistance. While she is questioned by the police, presence of lawyer may render great assistance to her. In rape trials anonymity of the victim has to be maintained. Compensation for the victim shall be awarded by the Court on conviction of the offender and by the Criminal Injuries Compensation Board whether or not a conviction has taken place.
26. In Bodhisattwa Gautam v. Subhra Chakraborty (AIR 1996 SC 922) it was observed by the Supreme Court that rape is a crime against basic human rights and is also violative of the victim's most cherished of the Fundamental Rights, namely, the Right to Life contained in Article 21. The introduction of Section 114A in the Evidence Act was also taken into consideration which enables a Court to raise a presumption that the woman who was the victim of rape had not consented and that the offence was committed against her will. The situation has hardly improved. Conviction rates for rape are still lower than any other major crime and the woman continues to argue even today that in rape cases the victimised women, rather than the rapist, were put on trial. A large number of women still fail to report rapes to the Police because they fear embarassing and insensitive treatment by the doctors, the law enforcement personnel and/or the cross-examining defence attorneys. The fear has to be allayed from the minds of women so that if and when this crime is committed, the victim may promptly report the matter to the police. Following the decision in Delhi Domestic Working Women's Forum (supra), it was laid down thus :
"This decision recognises the right of the victim for compensation by providing that it shall be awarded by the Court on conviction of the offender subject to the finalisation of scheme by the Central Government. If the Court trying an offence of rape has jurisdiction to award the compensation at the final stage, there is no reason to deny to the Court the right to award interim compensation which should also be provided in the scheme. On the basis of principles set out in the aforesaid decision in Delhi Domestic Working Women's Forum, the jurisdiction to pay interim compensation shall be treated to be part of the overall jurisdiction of the Courts trying the offences of rape which, as pointed out above, is an offence against basic human rights as also the Fundamental Right of Personal Liberty and Life."
27. The Supreme Court has considered the power of the Court to award compensation under Section 357(3) Cr.P.C. in the case of Hari Kishan & State of Haryana v. Sukhbir Singh (AIR 1988 SC 2127) and laid down as under :
"Sub-section (1) of Section 357 provides power to award compensation to victims of the offence out of the sentence of fine imposed on accused. In this case, we are not concerned with Sub-section (1). We are concerned only with Sub-section (3). It is an important provision but Courts have seldom invoked it. Perhaps due to ignorance of the object of it. It empowers the Court to award compensation to victims while passing judgment of conviction. In additional to conviction, the Court may Order the accused to pay some amount by way of compensation to victim who has suffered by the action of accused. It may be noted that this power of Courts to award compensation is not ancillary to other sentences but it is in addition thereto. This power was intended to do something to re-assure the victim that he or she is not forgotten in the criminal justice system. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. It is, to some extent, a constructive approach to crimes. It is indeed a step forward in our criminal justice system. We, therefore, recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way.
The payment by way of compensation must, however, be reasonable. What is reasonable, may depend upon the facts and circumstances of each case. The quantum of compensation may be determined by taking into account the nature of crime, the justness of claim by the victim and the ability of accused they may be asked to pay in equal terms unless their capacity to pay varies considerably. The payment may also vary depending upon the acts of each accused. Reasonable period for payment of compensation, if necessary by instalments may also be given. The Court may enforce the Order by imposing sentence in default."
28. In the facts and circumstances of the case, offence under Section 366, I.P.C. is also made out as the girl was below 18 years of age and was a student of Class XI. She was taken to Ujjain by the appellant, a police constable, who knew the consequences of his act. Thus, the offences under Sections 376 and 366 I.P.C. are proved against the appellant. However, unfortunately, the State has not preferred any appeal against acquittal under Section 366, I.P.C. Hence, this Court refrains from awarding any separate sentence for offence under Section 366, I.P.C.
29. In the result, the conviction of the appellant under Section 376, I.P.C. is maintained. However, the sentence of R.I. for 7 years and fine of Rs. 5000/- is reduced to R.I. for 6 years and 6 months only. In addition to that, the appellant shall pay compensation of Rs. 25,000/- (Rupees Twenty Five Thousand) to the victim i.e., Ku. Neeta Khare under Section 357(3) Cr.P.C.