Himachal Pradesh High Court
Ajay Kumar & Anr vs State Of H.P on 4 September, 2023
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. A. No. 293/2018 Decided on : 29.8.2023 Reserved on : 4.9.2023 .
Ajay Kumar & anr. .....Appellants
Versus
State of H.P. ....Respondent
Coram:
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
of The Hon'ble Mr. Justice Ranjan Sharma, Judge.
Whether approved for reporting?1 Yes rt For the Appellants: Mr. Lovneesh Kanwar, Sr. Advocate with Mr. Tek Chand, Advocate.
For the Respondent: Mr. Y. W. Chauhan, Sr. Additional
Advocate General with Ms.
Sharmila Patial, Addl. A.G. Mr. J.
S. Guleria, Dy.A.G & Mr. Rajat
Chauhan, Law Officer.
____________________________________________________________________ Justice Tarlok Singh Chauhan, Judge The appellants have filed the instant appeal against the judgment, dated 1.6.2018 passed by the learned trial court, whereby each of them have been convicted and sentenced to undergo imprisonment for life and to pay a fine of Rs.50,000/-
and in default of payment of fine, to further undergo rigorous imprisonment for a period of 1 year under Section 376-D read with Section 34 of the Indian Penal Code (for short, IPC); to 1 Whether reporters of the local papers may be allowed to see the judgment? Yes.
::: Downloaded on - 06/09/2023 21:30:30 :::CIS 2undergo rigorous imprisonment for a period of 7 years and to pay a fine of Rs.10,000/- and in default of payment of fine, to .
further undergo rigorous imprisonment for a period of 6 months under Section 354-B read with Section 34 of the IPC; to undergo rigorous imprisonment for a period of 2 years under Section 506 read with Section 34 of the IPC; and to undergo rigorous imprisonment for 3 years and to pay a fine of of Rs.5,000/- and in default of payment of fine, to further undergo rigorous imprisonment for a period of 3 months under Section rt 201 read with Section 34 of the IPC.
2 The case of the prosecution, in a brief, is that on 30.1.2016 a complaint was made by Sukha Devi PW2 (mother of prosecutrix) at police station Khundian that the prosecutrix had gone to fields to collect grass at around 5.30 P.M. on 30.1.2026, but when she did not return back for a long time, she went towards the fields looking for her daughter, whom she met after an hour and at that time her daughter was crying. On asking, the prosecutrix informed PW2 that when she was collecting grass in the fields, at that time Ajay Kumar, appellant No.1 and Ashok Kumar, appellant No.2 came from behind and caught hold of her. Thereafter, they disrobed her and even tore her clothes. PW2 was also informed by the prosecutrix that both the ::: Downloaded on - 06/09/2023 21:30:30 :::CIS 3 appellants also pressed her breasts and tried to rape her. On the complaint of PW2, an FIR No 9/2016 came to be registered .
at police station Khundian, Ex. PW2/A. 3 During the pendency of the investigation, the prosecutrix made a statement before the police that she in fact was raped by appellant No.2 and thereafter her statement was got recorded under Section 164 Cr.P.C., Ex.PW1/B. The of prosecutrix was medically examined and the investigation was completed by the police.
rt 4 After completion of the investigation and on submission of final report, the appellants were charged with aforesaid offences, to which they pleaded not guilty and claimed trial.
5 In order to prove its case, the prosecution examined as many as 15 witnesses. Thereafter, statements of the appellants were recorded under Section 313 Cr.P.C., wherein they claimed to be innocents and examined one witness in their defence.
6 The learned trial court, after recording the evidence and evaluating the same, convicted and sentenced the appellants, as aforesaid.
::: Downloaded on - 06/09/2023 21:30:30 :::CIS 47 It is vehemently argued by Mr. Lovneesh Kanwar, Learned Senior Advocate, assisted by Mr. Tek Chand, Advocate, .
that -
(i) statement of the prosecutrix is not trustworthy;
(ii) Section 376D of the IPC is not attracted;
(iii) Medical evidence is not conclusive;
(iv) Recovery of mobile phone of appellant No.2 is doubtful;
of
(v) Manner in which the photographs have been retrieved is doubtful; and
(vi) Sentence, as imposed, is excessive and harsh.
rt 8 On the other hand, Mr. J. S. Guleria, learned Deputy Advocate General would argue that this was a case of most heinous nature where the testimony of the prosecutrix being trustworthy was rightly relied upon by the learned trial court and that apart, her testimony was otherwise corroborated by other evidence on record, thus, warrants no interference in this appeal.
9 We have heard the learned counsel for the parties and have also gone through the records of the case.
10 In order to appreciate rival contentions of the parties, one would be required to first set out the material evidence that has come on record.
::: Downloaded on - 06/09/2023 21:30:30 :::CIS 511 The prosecutrix, who admittedly is a major, stepped into witness box as PW1 and stated that her date of birth is .
22.10.1997. On 30.01.2016, she had gone to cow shed, where at around 5:30 PM, while she was tying up the heap of grass, appellant No.1 came there and grabbed her from her back and asked her to undress. She refused and in the meanwhile appellant No.2 also came there. Appellant No.1 asked appellant of No.2 to handle her so that he could undress her. Appellant No.1 removed her trousers (salwar) and tore her shirt, Ex.P1 while rt taking it off. Thereafter, appellant No.2 committed rape on her without her consent and against her will. She, while resisting the indecent attack, sustained injury on her forehead. She cried for help, but none came for her rescue. Appellant No.2 while fleeing from the spot took her salwar (Ex.P2) and after a respite, he came back and clicked her indecent photographs (Mark-A1 to A6, Ex.PW15/A) while she was semi-naked and, thereafter, he returned her salwar. He also said that he would upload these photographs on Internet. Thereafter, when she was returning home weeping, on the way, she met her mother, who inquired about the cause of her weeping. She disclosed to her that the appellants had torn her clothes and had also pressed her breast. She further deposed that she had not disclosed the ::: Downloaded on - 06/09/2023 21:30:30 :::CIS 6 entire incident to her mother at that time since she was scared.
Thereafter, her mother reported the matter to the police. On the .
next day, she disclosed the entire acts of the appellants to her parents. Police visited the scene of crime and on her identification memo, Ex.PW-1/A, spot map, Ex.PW14/A, was prepared. Police had taken photographs (Ext. PW-4/B2 to Ext.
PW4/B8) of the scene of crime. Police also took her for medical of examination to Civil Hospital, Jawalamukhi, where she was medically examined vide MLC, EX.PW9/B. She identified shirt, rt Ext. P1 which was found to be badly torn from both sides and salwar, Ext. P2 and deposed that these clothes were worn by her at the time when the appellants committed rape on her.
She further stated that the police had taken her to court at Dehra, where her statement (Ex.PW-1/B) was recorded. She also proved on record the photographs, Mark A-1 to Mark A-6 that were taken by the appellants while committing rape on her.
12 During cross-examination, she admitted that she was acquainted with the fact that her brother Praveen had assaulted appellant No.2 with a stick (danda) in her courtyard in the earlier part of the same day i.e. 30.01.2016 during evening hours and due to assault, appellant No.2 became unconscious. She denied the suggestion that she had ::: Downloaded on - 06/09/2023 21:30:30 :::CIS 7 sustained injury on her forehead when she had rushed towards her brother Praveen Kumar to snatch the stick. She feigned .
ignorance regarding pendency of criminal case against her brother. She though denied that her family had been boycotted by the villagers, but took some time to answer this question and this demeanour was noted down by the learned trial court.
However, she denied that her brother assaulted appellant No.2 of as he did not allow the appellants to pass through the passage and he would still persist to take that passage. She admitted rt that on 30.01.2016 there was a marriage in the village, but could not know the name of bridegroom. She admitted that in her statement made to the concerned Magistrate, she had stated that appellant No.1 was on guard the cowshed, whereas appellant No.2 had committed repeated sexual intercourse with her. After viewing photograph, Mark A6, she could state as to who had clicked this photograph. She denied the suggestion that since a case was registered against her brother for assaulting appellant No.2, therefore, she in connivance with her family members roped the appellants in a false case.
13 PW2 Sukha Devi is mother of the prosecutrix, who testified that the prosecutrix had gone to collect the grass from the cow shed and at about 5:30 P.M. in the evening, after some ::: Downloaded on - 06/09/2023 21:30:30 :::CIS 8 time, she she met the prosecutrix on the way and found her to be crying. She inquired about the reason for her weeping, on .
which she(prosecutrix) disclosed that the appellants had torn her clothes and pressed her breast. She confided with her husband and later on, reported the matter to the police vide her statement Ex.PW-2/A. On the next day, her daughter disclosed that she was scared, thus did not tell the entire of incident that the appellant No.1 had committed rape on her. On the next day, the police came to the spot where her daughter rt showed scene of crime, which was also photographed by the police.
14 In her cross-examination, she stated that on 30.01.2016 there was a marriage in the village, however she denied that for that marriage the appellants were using the path in front of their house, which was objected to. She further denied that her family had been boycotted by the entire village.
She admitted that her son had assaulted appellant No.2 with a stick and voluntarily stated that if sister of a person was being raped by a person, he would have to face such assault from her brother. Firstly, she stated that the assault given by her son to appellant No.2 was a previous incident, then she stated it was a subsequent incident. She admitted that her house was at a ::: Downloaded on - 06/09/2023 21:30:30 :::CIS 9 distant place from the houses of Hari Dass and Braham Dass.
The appellant No.2 was assaulted by her son at about 06:30 .
PM. She denied that her family had been boycotted by the villagers as they used to move false applications against the villagers for indecent assaults. She could not state as to whether she had moved an application against one Chaman Lal alleging therein that he had abducted her other daughter, but of voluntarily stated that she was not her daughter. She feigned ignorance regarding an application rt being made to the police, which was recorded vide general diary entry, Mark D1 averring therein qua search for Darshana Kumari, who according to her, was not her daughter. She denied that in that case she made a statement to the police that she had' mistakenly made the report as Darshana Devi had gone to her maternal aunt without informing them. She also denied her signatures Mark-D3 on statement Mark D. She denied that the police had handed over her other daughter to her in presence of Pradhan and Ward Panch. She stated that her cow shed was at a distance of one kilometer from her house and one would take about half an hour to reach there. She denied that they got scared after her son assaulted appellant No.2 as the injuries on him were serious hence, foisted a false case against the appellants. She ::: Downloaded on - 06/09/2023 21:30:30 :::CIS 10 denied all the suggestions contrary to her version given in her examination-in-chief.
.
15 Dalip Singh, PW3, stated that on 31.1.2016 the police on the identification memo, Ex.PW-1/A, of the prosecutrix, prepared the map of crime scene and photographed it as well. During cross-examination, he denied that there was a family dispute amongst the family of the prosecutrix and that of of the appellants. He feigned ignorance regarding family of prosecutrix being socially boycotted by the villagers.
rt 16 Dev Raj, PW4, deposed that on 3.2.2016, the appellants got identified the scene of crime, for which memo, Ex.PW4/A, was prepared. He further deposed that appellant No.2 led the police party and witnesses to his house and got recovered one mobile of Micromax, Ex.P4 containing two SIMs Ex.P5 & Ex.P6 and memory card, Ex.P7 from his bed room. The Police seized it after sealing in a parcel Ex.P3 vide memo Ex.PW4/B. On being cross- examined, he admitted that none of the appellants disclosed in his presence that they had also taken the photographs of the prosecutrix.
17 Dhano Ram, PW5, deposed that on the application, Ex.PW5/A moved by the police, he had issued birth certificate, ::: Downloaded on - 06/09/2023 21:30:30 :::CIS 11 Ex.PW5/B of the prosecutrix as per records. He had also supplied the copy of birth register Ex.PW5/C. .
18 Prosecutrix's brother, Parveen Kumar, PW6, deposed that on 30.1.2016, at 5:30 p.m., the prosecutrix had gone to cow shed to collect the grass and when she did not return for an hour, his mother went for her search. After 10-15 minutes his mother came alongwith the prosecutrix, who was of weeping at that time. On his asking, his mother disclosed that prosecutrix had told her that when she was collecting the grass rt in the cowshed, appellants caught hold of her and torn her clothes and attempted to commit rape on her and touched her breasts. Thereafter, he went to the house of appellant No.2, but he was not present there. Thereafter, he went towards the house of appellant No.1, who met him on the way. He asked him about the matter, but appellant No.1 started scuffling with him and in that process appellant No.1 fell on the ground.
Thereafter, his sister, mother and father went to police station and reported the matter. On the next day, his sister disclosed that appellant No.2 had in fact committed rape on her and had also taken her indecent photographs. While being cross-
examined, he admitted that on 30.1.2016 the appellants were in the marriage of Braham Dass's son. He denied that they were ::: Downloaded on - 06/09/2023 21:30:30 :::CIS 12 annoyed by the appellants for using the path in front of their house and, therefore, he had given beatings to appellant No.2 .
with a club. He also denied that the villagers had socially boycotted their family. He further denied that appellant No.2 fell unconscious because of blow given by him and when her sister came forward to snatch the club from him she sustained injury on her forehead. He also denied that appellant No.1 thereafter of took appellant No.2 to the hospital and as such, they got frightened and rushed to police station to report a false FIR rt against the appellants. He further denied that he had taken mobile of appellant No.2 and later on clicked the photographs of prosecutrix and then deleted the same from memory card. He admitted that a case was registered against him for giving beatings to appellant No.2 with the club. He denied all the suggestions contrary to his version given in his examination-in-
chief.
19 Tilak Raj, PW7, is a marginal witness to the disclosure statement allegedly made by appellant No.2, however he resiled from the statement that was made by him under section 161 Cr.P.C and was declared hostile. On being cross-
examined by the public prosecutor, he denied that appellant No.2 while in police custody had made a statement that he ::: Downloaded on - 06/09/2023 21:30:30 :::CIS 13 could show the place where they committed the offence and also get recovered a mobile containing two SIMs.
.
20 Dr. Pawan Kumar, PW8, deposed that on the applications of the police, Ext. PW8/A and Ext. PW8/C, he had medically examined both the appellants and found that there was nothing to suggest that the appellants were incapable to perform sexual intercourse. He preserved their underwear, of blood samples, etc. and handed over the same to police officials.
He issued MLCs of the appellants, EX.PW8/B and Ex.PW8/D. rt During cross-examination, he deposed that he did not notice any injury marks over the entire body of the appellants.
21 Dr. Priya Sharma, PW9, had medically examined the prosecutrix and deposed that the prosecutrix was brought to her with the alleged history of sexual assault. She noticed abrasions on her forehead and over right side of her breast. On internal examination, she did not notice any injury on perianal region nor any abrasion. She preserved perianal swab, vaginal swab, cervical swab, pubic hair, head hair, nail clippings, blood sample on FTA card, blood sample in a vial in the sealed parcels and clothes of the prosecutrix in a sealed parcel alongwith sample seal to the police officials, who brought her for medical examination. She opined that possibility of sexual assault could ::: Downloaded on - 06/09/2023 21:30:30 :::CIS 14 not be ruled out. In this regard, she issued MLC Ex.PW9/B. She further opined that the injuries mentioned in the MLC were .
possible to a lady resisting forcible sexual assault. After receipt of RFSL report, Ex.PA, her final opinion, Ex.PW9/C remained the same. During cross-examination, she stated that the aforesaid injuries could be caused to a person while snatching Danda from another person. She also stated that in case two of persons forcibly tore out the clothes of another person there is a possibility of scratches and injuries. She could not comment rt whether in actual the prosecutrix was subjected to forcible intercourse or not. She deposed that if a person is subjected to repeated sexual intercourse at a single stretch of time the result would be different from the one as depicted in MLC, Ex.PW9/B. 22 HC Sudesh Kumar, PW10, stated that he alongwith HHC Kishori Lal, PW12 had taken the appellants for their medical examination. On 03.02.2016, appellant No.2 while in police custody had made a disclosure statement Ex.PW7/A that he could identify the spot, where he and appellant No.1 committed the offence and also get recovered a mobile phone having two SIMs from his house of which he was having exclusive knowledge and in this regard memo Ex.PW7/A was prepared. On 09.02.2016, he had taken various parcels to RFSL ::: Downloaded on - 06/09/2023 21:30:30 :::CIS 15 Dharamshala vide RC Ex.PW10/A. During cross-examination, he denied all the suggestions contrary to his version as given in .
his examination-in-chief.
23 HC Vipan Kumar, PW11, who was working as store incharge at the relevant time, deposed regarding various sealed parcels that were deposited with him in the malkhana. He further deposed that he had sent the parcels to RFSL of Dharamshala through, HC Sudesh Kumar PW10.
24 HHC Kishori Lal PW12, had taken appellant No.1 for rt his medical examination and he deposed accordingly.
25 LC Prem Lata PW13, had taken the prosecutrix for her medical examination and she deposed accordingly.
26 Inspector Sandeep Pathania, Investigating Officer, PW14, deposed that on 30.1.2016, as per the information of mother of the prosecutrix, an FIR EX.PW2/A was lodged. On 31.1.2016, he got the prosecutrix medically examined. On the identification of the prosecutrix, he prepared the spot map Ex.PW14/A. He also photographed EX.PW14-B1 to Ex.PW14/B-
8 and also videographed it vide CD Ex.PW14/C. He recorded the statements of witnesses, got the statement of prosecutrix Ex.PW-1/B recorded before the concerned Magistrate, arrested the appellants and thereafter, got them medically examined. On ::: Downloaded on - 06/09/2023 21:30:30 :::CIS 16 3.2.2016, appellant No.2, while in police custody, made a disclosure statement, Ex.PW7/A that he could get identified the .
place where the offence was committed and also get recovered a concealed mobile phone, from a room of his house, of which he was having exclusive knowledge. Pursuant to this statement, appellant led the police party and independent witnesses to his house and got recovered one mobile phone, Ex.P4 containing of two SIMS, Ex.P5 & Ex.P6 and a memory card Ex.P7 from a room of his house. The mobile phone was checked, but no rt photograph was found in it. The mobile phone was sealed in a parcel, Ex.P3 and was seized vide memo Ex.PW4/B. He photographed the recovery proceedings vide Ex.PW14/B-9 to Ex.PW14/B-13 and videographed vide Ex. Pw-14/C and thereafter drew up map Ex.PW-14/F. He procured prosecutrix's birth certificate, Ex.PW-5/B and abstract of birth register Ex.PW5/C. He procured RFSL report Ex.PA1. The Assistant Director, DNA Division refused for DNA profiling vide his report Ex.PB. On completion of investigation, he presented the police report before the court. During cross-examination, he admitted that FIR No.10/2016 under sections 341, 323 and 325, IPC was also investigated by him, but he failed to mention with respect to that FIR in the present case by mistake. He claimed that both ::: Downloaded on - 06/09/2023 21:30:30 :::CIS 17 these FIRs were interrelated. Appellant No.2 moved a written application on 31.1.2016 alleging therein that he was beaten up .
by Parveen on 30.1.2016 with a danda. Appellant No.2 was sent for medical examination on that day itself i.e. 31.1.2016 and thereafter he was arrested in the present case on 01.02.2016 and again his medical examination was conducted. He denied that he deliberately manipulated the facts so as to record the of FIR of appellant No.2 subsequently, though volunteered that their information was received at the police station prior to the rt present one. He admitted that during investigation in another FIR No.10/16 it had come that on 30.1.2016, when appellant No.2 was crossing the courtyard of Hari Singh, brother of the prosecutrix Parveen Kumar, assaulted him with a danda. He denied that while investigating case FIR No.10/16, it was revealed to him that after being hit by Parveen Kumar with danda, appellant No.2 went unconscious and at that time his mobile phone was taken away by Parveen Kumar and was returned later on and that mobile phone was manipulated for making up a case against the appellants. He denied all the suggestions contrary to his version given in his examination-in-
chief.
::: Downloaded on - 06/09/2023 21:30:30 :::CIS 1827 Dr. Jagjit Singh, PW15, is the forensic expert, who testified that he had retrieved obscene photographs of a girl .
from a memory card, Ex.P7 of cell phone sent to him and in this regard, had also issued report Ex.PA. He had also taken out the hard copy, Ex.PW15/A of XRY generated of memory card.
During cross-examination, he stated that the photographs taken could be stored in the memory card or in the phone of depending upon its settings, however voluntarily stated that it could not be saved at both of these locations simultaneously. He rt denied that by analyzing photographs digitally, he could not say that the photographs had been transferred from one mobile to another device.
28 As regards statements of the appellants recorded under Section 313, Cr. P.C. their defence is that they had been falsely implicated in order to save the prosecutrix's brother for assaulting appellant No.2.
29 The appellants, in their defence, examined Sushil Kumar, DW-1, who deposed that on 30.1.2016 at around 7-7:30 p.m., he alongwith appellants was engaged in taking different things to the house of Braham Dass. He was walking ahead, whereas appellants were following him. Appellant No.1 called him and in response to it, when he went there he saw appellant ::: Downloaded on - 06/09/2023 21:30:30 :::CIS 19 No.1 to have fallen on the ground, who was hit by prosecutrix's brother. He alongwith appellant No.2 took him to Jawalamukhi .
hospital. The family of the victim was not in a good terms with the villagers and it was for that reason they used to curse others and level false allegations. They had previously also implicated a boy from village Majeen in a case of outraging the modesty of the prosecutrix. Police had inquired facts from him.
of The villagers had boycotted the prosecutrix's family. During cross-examination, he stated that he had not seen the rt prosecutrix's brother inflicting injury to Ashok Kumar. He denied all the suggestions contrary to his version given in his examination-in-chief.
30 Now, adverting to the arguments of the appellants point-wise.
(i) Statement of the prosecutrix is not trustworthy
31 At the outset, it needs to be observed that rape is a crime not against an individual but a crime which destroys the basic equilibrium of the social atmosphere. "Rape" not only lowers the dignity of a woman but also mars her reputation. The plight of the woman and shock suffered by the victim can be well visualized. The victim of rape grows with traumatic ::: Downloaded on - 06/09/2023 21:30:30 :::CIS 20 experience and an unforgettable shame haunted by the memory of the disaster forcing her to a state of terrifying melancholia.
.
The torment on the victim has the potentiality to corrode the poise and equanimity of any civilized society. It has been rightly said that whereas a murderer destroys the physical frame of a victim, a rapist degrades and defiles the soul of a helpless female. The offence of "Rape" is grave by its nature, which of warrants a strong deterrent by judicial hand.
32 In State of Punjab vs. Ramdev Singh, AIR 2004 rt SC 1290, the Hon'ble Supreme Court held as under:-
This Court dealt with the issue and held that rape is violative of victim's fundamental right under Article 21 of the Constitution. So, the courts should deal with such cases sternly and severely. Sexual violence, apart from being a dehumanizing act, is an unlawful intrusion on the right of privacy and sanctity of a woman. It is a serious blow to her supreme honour and offends her self-esteem and dignity as well. It degrades and humiliates the victim and where the victim is a helpless innocent child or a minor, it leaves behind a traumatic experience. A rapist not only causes physical injuries, but leaves behind a scar on the most cherished position of a woman, i.e. her dignity, honour, reputation and chastity. Rape is not only an offence against the person of a woman, rather a crime against the entire society. It is a crime against basic human rights and also violates the most cherished ::: Downloaded on - 06/09/2023 21:30:30 :::CIS 21 fundamental right guaranteed under Article 21 of the Constitution."
.
33 In Jugendra Singh Vs. State of UP, (2012) 6 SCC 297, the Hon'ble Supreme Court has held:-
"Rape or an attempt to rape is a crime not against an individual but a crime which destroys the basic equilibrium of the social atmosphere. The consequential of death is more horrendous. It is to be kept in mind that an offence against the body of a woman lowers her dignity and mars her reputation. It is said that one's physical frame is his or her temple. No one has any right of rt encroachment. An attempt for the momentary pleasure of the accused has caused the death of a child and had a devastating effect on her family and, in the ultimate eventuate, on the collective at large. When a family suffers in such a manner, the society as a whole is compelled to suffer as it creates an incurable dent in the fabric of the social milieu. The cry of the collective has to be answered and respected and that is what exactly the High Court has done by converting the decision of acquittal to that of conviction and imposed the sentence as per law."
34 In Shyam Narian Vs. The State of NCT Delhi , (2013) 7 SCC 77, the Hon'ble Supreme Court has elaborately dealt with the issue as discussed in Madan Gopal Kaakar Vs. Naval Dubey and Anr., (1992) 3 SCC 204, State of Andhra ::: Downloaded on - 06/09/2023 21:30:30 :::CIS 22 Pradesh Vs. Bodem Sundra Rao, AIR 1996 SC 530 and State of Karnataka Vs. Krishnappa, (2000) 4 SCC 75 and held that:
.
"It is an assault on the individuality and inherent dignity of a woman with the mindset that she should be elegantly servile to men. Rape is a monstrous burial of her dignity in the darkness. It is a crime against the holy body of a woman and the soul of the society and such a crime is aggravated by the manner in which it has been of committed."
35 Equally settled is the proposition of law that conviction can be based on the sole testimony of the victim of rt sexual assault without corroboration from any other evidence.
The statement of the prosecutrix is more reliable than any other witness. Where the testimony of victim of sexual assault instills the confidence in court, the same can be relied for conviction of the accused. It is also a well settled principle of law that corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance to prudence under the given circumstances.
36 In Vijay @ Chinee vs. State of Madhya Pradesh, (2010) 8 SCC 191, the Hon'ble Supreme Court has dealt with the issue and held that :
"Thus, the law that emerges on the issue is to the effect that the statement of the prosecutrix if found to be worthy of credence and reliable, requires no corroboration. The ::: Downloaded on - 06/09/2023 21:30:30 :::CIS 23 Court may convict the accused on the sole testimony of the prosecutrix."
.
37 It is a settled legal proposition that once the statement of prosecutrix inspires confidence and is accepted by the court as such, conviction can be based on the solitary evidence of the prosecutrix and no corroboration would be required unless there are compelling reasons which necessitate of the court for corroboration of her statement. Corroboration of testimony of the prosecutrix as a condition for judicial reliance rt is not a requirement of law but a guidance of prudence under the given facts and circumstances.
38 There are catena of judgments passed by the Hon'ble Supreme Court wherein it has been held that only the deposition of the prosecution by itself is also sufficient to record conviction for the offence of rape if that testimony inspires confidence and has complete link of truth.
39 In Md. Ali Vs. State of UP, 2015 (3) SCALE 274, the Hon'ble Supreme Court has held that "Be it noted, there can be no iota of doubt that on the basis of the sole testimony of the prosecutrix, if it is unimpeachable and beyond reproach, a conviction can be based and in Mohd. Iqbal v. State of Jharkhand reported in (2013) 14 SCC 481, the Hon'ble ::: Downloaded on - 06/09/2023 21:30:30 :::CIS 24 Supreme Court has held that "There is no prohibition in law to convict the accused of rape on the basis of sole testimony of the .
prosecutrix and the law does not require that her statement be corroborated by the statements of other witnesses.
40 Minor contradictions or insignificant discrepancies should not be a ground for throwing out an otherwise reliable prosecution case. A prosecutrix complaining of having been a of victim of the offence of rape is not an accomplice after the crime. Her testimony has to be appreciated on the principle of rt probabilities just as the testimony of any other witness; a high degree of probability having been shown to exist in view of the subject matter being a criminal charge. However, if the court finds it difficult to accept the version of the prosecutrix on its face value, it may search for evidence, direct or substantial, which may lend assurance to her testimony.
41 It is vehemently contended by the learned senior counsel for the appellant that as per the complaint made to the police on 30.1.2016, it was informed that the prosecutrix had gone to her fields when the appellants had caught hold of her, torn her clothes and tried to rape her, whereas the prosecutrix while recording her statement under Section 164 Cr. P.C. on 1.12.2016, stated that she had gone to her fields and was ::: Downloaded on - 06/09/2023 21:30:30 :::CIS 25 binding the grass when the appellant No.1 caught hold of her.
In both these statements, place of incident as mentioned is .
fields, whereas while appearing in the witness box, she had stated that she was tying the heap of grass in the cowshed when appellant No.1 had grabbed her from behind. The story of the cow shed has been introduced by the prosecutrix for the first time and there is no explanation on record as to the actual of place of incident.
42 However,
rt we find no merit in the aforesaid
contention as admittedly cowshed was located within fields as is evident from spot map and even otherwise also this minor contradiction does not create any dent on the prosecution's case.
43 It is next contended by the learned senior counsel that the prosecutrix in her statement recorded under Section 164 Cr. P.C. had stated that after the incident, when she was coming towards her home, she met her mother and disclosed everything to her, but while recording her statement before the court, she deposed that she had not disclosed the complete incident as she was scared and she had only disclosed to her mother that the appellant had torn her clothes and had pressed her breast. This discrepancy between two statements leads to ::: Downloaded on - 06/09/2023 21:30:30 :::CIS 26 only conclusion that the prosecutrix had not told the truth and she had concocted a false story just to implicate the appellants .
in a false case after the registration of criminal case against her brother.
44 However, we find no merit in the aforesaid contention as the court cannot be unmindful of the fact that these discrepancies are bound to occur due to apprehension of and attitude of the society towards the victim, especially when the victim has undergone such a horrifying, humiliating and rt traumatic experience.
45 While advancing his argument further, learned senior counsel for the appellants would argue that the prosecutrix has tried to improve her case at every advancing stage as on the date of incident she had only stated to her mother that the appellants had torn her clothes and had pressed her breasts and tried to rape her, but while recording her statement under Section 164 Cr.P.C., she stated that appellant No.2 had raped her and appellant No.1 had pressed her breasts and had also tried to rape her, but he was stopped by appellant No.2 and was sent out. In her statement before the Court, the prosecutrix stated that appellant No.1 asked appellant No.2 to handle her while he undressed and removed ::: Downloaded on - 06/09/2023 21:30:30 :::CIS 27 her salwar and tore her shirt while taking it off, however, she while appearing in the court as witness box, had not stated .
that appellant No.1 had tried to rape her, whereas the learned Sessions Judge while convicting the appellants has disregarded the fact that the case as sought to be built up by the prosecution, on the basis of the allegations of the prosecutrix bristles with improbabilities and even impossibility.
of
46 However, again we find no merit in this contention
for the simple reason that in
rt all criminal cases, normal
discrepancies are bound to occur in the depositions of witnesses due to normal errors of observation, namely, errors of memory due to lapse of time or due to mental disposition such as shock and horror at the time of occurrence. Where the omissions amount to a contradiction, creating a serious doubt about the truthfulness of the witness and the other witnesses also make material improvements while deposing in the Court, such evidence cannot be safe to rely upon. However, minor contradictions, inconsistencies, embellishments or improvements on trivial matters which do not affect the core of the prosecution case, should not be made a ground on which the evidence can be rejected in its entirety.
::: Downloaded on - 06/09/2023 21:30:30 :::CIS 2847 Exaggerations per se do not render the evidence brittle, but it can be one of the factors to test the credibility of .
the prosecution version, when the entire evidence is put in a crucible for being tested on the touchstone of credibility.
Therefore, mere marginal variations in the statement of a witness cannot be dubbed as improvements as the same may be elaborations of the statement made by the witness earlier.
of The omissions which amount to contradictions in material particulars i.e. go to the root of the case materially affect the rt trial or core of the prosecution's case, render the testimony of the witness liable to be discredited.
(ii) Section 376D of the IPC is not attracted.
48 It is then urged by the learned senior counsel for the appellants that in the first information report, allegation against the appellant No.1 were that he tore the clothes of the prosecutrix alongwith appellant No.2 and pressed her breasts and tried to rape her. In her statement under Section 164 Cr.P.C., allegations against appellant No.2 were that he caught hold of her and asked her to take off her clothes. He tried to rape her, but appellant No.2 had sent him outside to keep a watch, whereas in her statement before the Court, the prosecutrix had stated that appellant No.1 asked appellant ::: Downloaded on - 06/09/2023 21:30:30 :::CIS 29 No.2 to handle her while he undressed and remove her salwar and tore her shirt while taking if off. The prosecution has taken .
two different stands with regard to act of appellant No.1. This assumes importance because PW2 mother of the prosecutrix in her cross examination, admitted that appellant No.1 had not sexually assaulted her daughter. Therefore, evidence on record goes to prove that no offence under Section 376D of IPC is of made out against the appellants.
49 We find no merit in this contention.
rt 50 Section 376D of IPC reads as under:
376D. Gang Rape - Where a woman is raped by one or more persons constituting a group or acting in furtherance of a common intention, each of those persons shall be deemed to have committed the offence of rape and shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to life which shall mean imprisonment for the remainder of that person's natural life, and with fine;
Provided that such fine shall be just and reasonable to meet the medical expenses and rehabilitation of the victim;
Provided further that any fine imposed under this section shall be paid to the victim.
51 Taking the contention of the appellants at its best, for the time being that no overt act has been attributed by ::: Downloaded on - 06/09/2023 21:30:30 :::CIS 30 appellant No2 against the prosecutrix, even then going by the definition as contained in Section 376 D, even if it is assumed .
for argument's sake that the prosecutrix was raped only by appellant No.2 and not by appellant No.1 even then appellant No.1 is liable to be convicted as admittedly, he at the relevant time was accompanying the appellant No.2 thereby constituting a group, thus is deemed to have committed the offence of rape.
of 52 Apart from above, it needs to be noticed that the appellants in addition to Section 376 D of IPC have also been rt charge-sheeted for an offence punishable under Section 34 of IPC, which reads as under:-
34. Acts done by several persons in furtherance of common intention- When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.
53 Additionally, therefore, appellant No.1 cannot take any exception to the findings rendered by the learned trial court with regard to his conviction under Section 376D of IPC.
(iii) medical evidence is not conclusive.
54 It is contended by learned senior counsel for the appellant that medical evidence does not point towards rape being committed by appellant No.2 as PW9 stated that on ::: Downloaded on - 06/09/2023 21:30:30 :::CIS 31 internal examination no injury was found on perianal region on separation of thighs neither any abrasion was present.
.
Moreover, as per medical report, hymen was intact and no blood was found present. In case the prosecutrix had been subjected to forcible sexual assault, in that eventuality the hymen would not have remained intact and fresh blood must have oozed out.
of 55 We find no merit in the said contention as it would be noticed that the prosecutrix was having injury in the shape rt of abrasion of 2 x 1 cm on the right side of her forehead and two more injuries in the nature of abrasion each 1 x 1 cm over right side of her breast, which according to PW9 were possible to a lady while resisting forcible sexual assault.
56 Even otherwise, injury is not sine qua non for deciding whether rape had been committed, but it has to be decided on the factual matrix of each case, more particularly, because hymen was found to be intact is not a good ground for acquittal of a rape accused. The condition of hymen being torn does not necessarily lead to infer previous conduct, and conversely hymen being not torn also does not necessarily mean that there was no sexual act and intact hymen does not rule out sexual assault.
::: Downloaded on - 06/09/2023 21:30:30 :::CIS 3257 Apart from above, the court cannot be oblivious to the Criminal Law (Amendment) Act, 2013 (13 of 2013) has .
brought sea change in the definition of "rape" in section 375 and its ambit has been widened to include acts other than forcible peno-vaginal penetration or sexual intercourse.
Therefore, it would be imprudent to find nexus of offence or rape with the condition of hymen, until and unless the facts of otherwise suggest.
(iv) rt Recovery of mobile phone of appellant NO.2 is doubtful.
58 It is argued by learned senior counsel for the appellant that even recovery of mobile phone of appellant No.2 is shrouded by suspicion. PW4 is witness of recovery of mobile phone, in whose presence mobile phone was taken into possession, vide recovery memo, Ext. PW4/B, whereas there is no mention of memory card or SIMs card.
59 However even this contention is without any substance. PW4 has clearly stated that appellant No.2 had taken the policy party and the witnesses to his house and got recovered one mobile micromax containing two SIMs and memory card from his bed room. No doubt, there is no mention of memory card and SIM cards in Ext. PW4/B, but the same ::: Downloaded on - 06/09/2023 21:30:30 :::CIS 33 was not required to be mentioned separately as the two SIM cards and memory card were inside the mobile, which .
constituted one single component i.e. mobile phone. Moreover, when the same was produced on record, three seals of impression "S" and FSL were found to be intact over the same as is otherwise the statement of PW4, who stated that mobile along with 2 SIM cards and memory card were put in a cloth of parcel and sealed with seal impression "S". Even otherwise, what has been recovered from the spot is in consonance and rt corroborates the prosecution story as would be discussed in point No.(v).
(v) manner in which the photographs have been retrieved is doubtful.
60 It is strenuously argued by the learned senior counsel for the appellants that even though PW15 has issued report, Ext. PA, which contained semi-nude photographs of the prosecutrix, however this witness did not send other photographs which were retrieved from the mobile phone or its memory card and the explanation given by this witness is that the police vide their application had only requested to retrieve only the obscene photographs, but no such application was produced in the Court. This witness has also stated that there ::: Downloaded on - 06/09/2023 21:30:30 :::CIS 34 were other photographs in the mobile set or memory card, therefore, in that eventuality how this witness could decipher as .
to which were the pictures of the prosecutrix particularly when the identity of the prosecutrix was not known to this witness.
Therefore, non recovery of the memory card and identification of the pictures of the prosecutrix by the Senior Scientific Officer casts huge doubt on the prosecution.
of
61 We again find no merit in this contention. In order to
appreciate this contention,
rt one would be required to go
through the background of this case.
62 It is the specific case of the defence (appellants
herein) that during the earlier part of the day, it was brother of the prosecutrix, Praveen Kumar, who assaulted appellant No.2 with a stick, which led to registration of FIR No. 10/2016. PW15 has clearly stated that he had received a sealed cloth parcel bearing three seals of impression "S" along with sample seal vide RC No. 9/16 through HHC Kishori Lal of Police Station Khundian. Seal impressions on the parcel were intact and tallied with specimen seal along with forwarding letter. The parcel was cut and opened. On opening the parcel, one mobile micromax alongwith battery was taken out. The mobile, battery, SIM Cards and memory card were marked as Ext.1, B-1, S-1, S-
::: Downloaded on - 06/09/2023 21:30:30 :::CIS 352 & Q-1 respectively. The mobile was opened and on opening, one SIM card of Airtel and one SIM card of Reliance and one .
memory card were taken out. It was found to be containing 2 SIM cards and memory card, therefore, there was no need to mention what the mobile phone contains i.e. one SIM card of Airtel and one SIM card of Reliance and one memory card separately.
of 63 After laboratory examination, date present in the mobile phone marked as Ext. 1, SIM cards marked as S-1 and rt S-2 and memory card marked as Q-1 were extracted with XRY version 6.14 through XRY accessories. The obscene clicked photographs of a girl on 30.1.2016 were found to be present in the data extracted from the memory card marked as Q-1. All the obscene clicked photographs of a girl on 30.1.2016 were exported in XRY generated report of Q-1. The obscene clicked photographs of a girl on 30.1.2016 could neither be found in the data extracted from the mobile phone marked as Ext. 1 nor in the data extracted from SIM cards S-1 and S-2. He issued report, Ext. PA.
64 Now, adverting to report, Ext. PA, it would be noticed that obscene photographs were clicked on 31.1.2016.
Photographs Mark A-1 was clicked at 5:51:57 P.M., Mark A-2 at ::: Downloaded on - 06/09/2023 21:30:30 :::CIS 36 6:03:07 P.M., Mark A3 at 6:02:56 P.M., Mark A4 at 6:03:09 P.M., Mark A5 at 5:52:01 P.M., Mark A6 at 5:53:46 P.M. The .
timing of these photographs corresponds exactly with the prosecutrix's version that the appellant No.2 had taken her indecent photographs after 5:30 P.M. on 30.1.2016 and the prosecutrix had duly identified these photographs (Mark A1 to A6) belonging to her.
of 65 In one of these photographs, Mark A1, it is clearly seen that a person is engaged in the act of rape and this rt photographs has been taken at 5:51:57 P.M. on 30.1.2016. In photograph, Mark A6, it can be seen that some person had gagged the mouth of the prosecutrix with his hand and this photograph has been taken at 5:53:46 P.M. on 30.1.2016. In photograph Mark A5, the prosecutrix can be seen lying on the ground and this photograph has been taken at 5:52:01 P.M. The photographs corroborate the version putforth by the prosecutrix regarding rape having been committed by the appellant No.2. In the other photographs, Mark A2 and Mark A4, the prosecutrix is seen in semi-naked condition and these photographs have been taken in between 6:02:56 P.M. to 6:03:09 P.M. on 30.1.2016 i.e. approximately after 9 minutes of taking of photograph Mark A6, which corroborate that these ::: Downloaded on - 06/09/2023 21:30:30 :::CIS 37 photographs Mark A2 to Mark A4 were subsequently taken by the appellants when they came back to return the salwar of the .
prosecutrix.
66 Retrieval of indecent photographs of the prosecutrix from the memory card of the mobile of the appellant No.2, which were taken exactly at the point of time alleged by the prosecutrix lends impeccable credence to the testimony of the of prosecutrix as has rightly been held by the learned trial court.
(vi) Sentence, as imposed, is excessive and harsh.
rt 67 Adverting to last submission of the learned counsel for the appellants, sentence of life imprisonment is not warranted in the instant case.
68 It is more than settled that the courts are required to consider cumulative effect of both aspects namely aggravating factors as well as mitigating factors and it may not be very appropriate for the Court to decide the most significant aspect of sentencing policy with reference to one of the classes under any of the following heads while completely ignoring other classes under other heads. It is the primary duty of the Court to balance the two.
::: Downloaded on - 06/09/2023 21:30:30 :::CIS 3869 Further, it is always preferred not to fetter the judicial discretion by tempting to make an excessive .
numeration in one way or another. Both aspects namely aggravating and mitigating circumstances have to be given their respective weightage and the court, therefore, has to strike the balance between two and to see towards which side scale/ balance of justice tilts.
of 70 In Ramnaresh & Ors vs. State Of Chhattisgarh, 2012 (4) SCC 257, while dealing with case of death penalty, rt the Hon'ble Supreme Court while relying upon judgment in Bachan Singh v. State of Punjab, (1980) 2 SCC 684 and Machhi Singh & Ors. v. State of Rajasthan [(1983) 3 SCC 470 has laid down following principles to be borne in mind while sentencing the accused:
73. Most of the heinous crimes under the IPC are punishable by death penalty or life imprisonment. That by itself does not suggest that in all such offences, penalty of death alone should be awarded. We must notice, even at the cost of repetition, that in such cases awarding of life imprisonment would be a rule, while 'death' would be the exception. The term 'rarest of rare' case which is the consistent determinative rule declared by this Court, itself suggests that it has to be an exceptional case.
74. The life of a particular individual cannot be taken away except according to the procedure established by ::: Downloaded on - 06/09/2023 21:30:30 :::CIS 39 law and that is the constitutional mandate. The law contemplates recording of special reasons and, therefore, the expression 'special' has to be given a definite meaning .
and connotation. 'Special reasons' in contra-distinction to 'reasons' simplicitor conveys the legislative mandate of putting a restriction on exercise of judicial discretion by placing the requirement of special reasons.
75. Since, the later judgments of this Court have added to the principles stated by this Court in the case of Bachan of Singh (supra) and Machhi Singh (supra), it will be useful to re-state the stated principles while also bringing them in consonance, with the recent judgments.
76. The law enunciated by this Court in its recent rt judgments, as already noticed, adds and elaborates the principles that were stated in the case of Bachan Singh (supra) and thereafter, in the case of Machhi Singh (supra). The aforesaid judgments, primarily dissect these principles into two different compartments - one being the 'aggravating circumstances' while the other being the 'mitigating circumstances'. The Court would consider the cumulative effect of both these aspects and normally, it may not be very appropriate for the Court to decide the most significant aspect of sentencing policy with reference to one of the classes under any of the following heads while completely ignoring other classes under other heads. To balance the two is the primary duty of the Court. It will be appropriate for the Court to come to a final conclusion upon balancing the exercise that would help to administer the criminal justice system better and provide an effective and meaningful reasoning by the ::: Downloaded on - 06/09/2023 21:30:30 :::CIS 40 Court as contemplated under Section 354(3) Cr.P.C. Aggravating Circumstances:
(1) The offences relating to the commission of heinous .
crimes like murder, rape, armed dacoity, kidnapping etc. by the accused with a prior record of conviction for capital felony or offences committed by the person having a substantial history of serious assaults and criminal convictions.
(2) The offence was committed while the offender was of engaged in the commission of another serious offence. (3) The offence was committed with the intention to create a fear psychosis in the public at large and was committed in a public place by a weapon or device which clearly rt could be hazardous to the life of more than one person.
(4) The offence of murder was committed for ransom or like offences to receive money or monetary benefits. (5) Hired killings.
(6) The offence was committed outrageously for want only while involving inhumane treatment and torture to the victim.
(7) The offence was committed by a person while in lawful custody.
(8) The murder or the offence was committed to prevent a person lawfully carrying out his duty like arrest or custody in a place of lawful confinement of himself or another. For instance, murder is of a person who had acted in lawful discharge of his duty under Section 43 Cr.P.C.
(9) When the crime is enormous in proportion like making an attempt of murder of the entire family or members of a particular community.
::: Downloaded on - 06/09/2023 21:30:30 :::CIS 41(10) When the victim is innocent, helpless or a person relies upon the trust of relationship and social norms, like a child, helpless woman, a daughter or a niece staying .
with a father/uncle and is inflicted with the crime by such a trusted person.
(11) When murder is committed for a motive which evidences total depravity and meanness.
(12) When there is a cold blooded murder without provocation.
of (13) The crime is committed so brutally that it pricks or shocks not only the judicial conscience but even the conscience of the society.
Mitigating Circumstances :
rt (1) The manner and circumstances in and under which the offence was committed, for example, extreme mental or emotional disturbance or extreme provocation in contradistinction to all these situations in normal course. (2) The age of the accused is a relevant consideration but not a determinative factor by itself. (3) The chances of the accused of not indulging in commission of the crime again and the probability of the accused being reformed and rehabilitated.
(4) The condition of the accused shows that he was mentally defective and the defect impaired his capacity to appreciate the circumstances of his criminal conduct. (5) The circumstances which, in normal course of life, would render such a behavior possible and could have the effect of giving rise to mental imbalance in that given situation like persistent harassment or, in fact, leading to such a peak of human behavior that, in the facts and ::: Downloaded on - 06/09/2023 21:30:30 :::CIS 42 circumstances of the case, the accused believed that he was morally justified in committing the offence. (6) Where the Court upon proper appreciation of evidence .
is of the view that the crime was not committed in a pre-
ordained manner and that the death resulted in the course of commission of another crime and that there was a possibility of it being construed as consequences to the commission of the primary crime.
(7) Where it is absolutely unsafe to rely upon the of testimony of a sole eye-witness though prosecution has brought home the guilt of the accused.
77. While determining the questions relateable to sentencing policy, rt the Court has to follow certain principles and those principles are the loadstar besides the above considerations in imposition or otherwise of the death sentence.
Principles :
(1) The Court has to apply the test to determine, if it was the 'rarest of rare' case for imposition of a death sentence. (2) In the opinion of the Court, imposition of any other punishment, i.e., life imprisonment would be completely inadequate and would not meet the ends of justice.
(3) Life imprisonment is the rule and death sentence is an exception.
(4) The option to impose sentence of imprisonment for life cannot be cautiously exercised having regard to the nature and circumstances of the crime and all relevant considerations.
(5) The method (planned or otherwise) and the manner (extent of brutality and inhumanity, etc.) in which the ::: Downloaded on - 06/09/2023 21:30:30 :::CIS 43 crime was committed and the circumstances leading to commission of such heinous crime.
78.Stated broadly, these are the accepted indicators for .
the exercise of judicial discretion but it is always preferred not to fetter the judicial discretion by attempting to make the excessive enumeration, in one way or another. In other words, these are the considerations which may collectively or otherwise weigh in the mind of the Court, while exercising its jurisdiction. It is difficult to state it as of an absolute rule. Every case has to be decided on its own merits. The judicial pronouncements, can only state the precepts that may govern the exercise of judicial discretion to a limited extent. Justice may be done on the rt facts of each case.
These are the factors which the Court may consider in its endeavour to do complete justice between the parties.
79. The Court then would draw a balance-sheet of aggravating and mitigating circumstances. Both aspects have to be given their respective weightage. The Court has to strike a balance between the two and see towards which side the scale/balance of justice tilts. The principle of proportion between the crime and the punishment is the principle of 'just deserts' that serves as the foundation of every criminal sentence that is justifiable. In other words, the 'doctrine of proportionality' has a valuable application to the sentencing policy under the Indian criminal jurisprudence.
Thus, the court will not only have to examine what is just but also as to what the accused deserves keeping in view the impact on the society at large.
::: Downloaded on - 06/09/2023 21:30:30 :::CIS 4480. Every punishment imposed is bound to have its effect not only on the accused alone, but also on the society as a whole. Thus, the Courts should consider retributive and .
deterrent aspect of punishment while imposing the extreme punishment of death.
81. Wherever, the offence which is committed, manner in which it is committed, its attendant circumstances and the motive and status of the victim, undoubtedly brings the case within the ambit of 'rarest of rare' cases and the of Court finds that the imposition of life imprisonment would be inflicting of inadequate punishment, the Court may award death penalty. Wherever, the case falls in any of the exceptions to the 'rarest of rare' cases, the Court may rt exercise its judicial discretion while imposing life imprisonment in place of death sentence.
71 Subsequently, the Hon'ble Supreme Court in Sunil Dutt Sharma vs State (Govt.of Nct of Delhi) 2014 (4) SCC 375 observed that it sees no reason as to why the principles of sentencing as evolved by the Hon'ble Supreme Court over the years through largely in the context of the death penalty will not be applicable to all lesser sentences so long as the sentencing judge is vested with the discretion to award a lesser or a higher sentence resembling the swing of the pendulum from the minimum to the maximum. In fact, the Hon'ble Supreme Court reminded the infallible words that - what is ::: Downloaded on - 06/09/2023 21:30:30 :::CIS 45 good to one situation would hold to be equally good to another like situation.
.
72 No doubt, the appellants have committed a very heinous offence, however, taking into consideration the fact that the appellants are first offenders having been charged sheeted at the age of 25 and 21 years coupled with the fact that act complained could have triggered on account of the beatings of given by brother of the prosecutrix to one of the appellants, we are of the considered view that imposition of maximum rt sentence under Section 376D of IPC of life imprisonment is not warranted. Accordingly, the sentence, as imposed by the learned trial court, is modified and accordingly, each of the appellants is convicted and sentenced:-
(i) to undergo rigorous imprisonment for a period of 20 years (without remission) and to pay a fine of Rs.1,00,000/- and in default of payment of fine, to further undergo rigorous imprisonment for a period of 2 years under Section 376-D read with Section 34 of IPC);
(ii) to undergo rigorous imprisonment for a period of 7 years and to pay a fine of Rs.20,000/- and in default of payment of fine, to further undergo ::: Downloaded on - 06/09/2023 21:30:30 :::CIS 46 rigorous imprisonment for a period of 6 months under Section 354-B read with Section 34 of the IPC;
.
(iii) to undergo rigorous imprisonment for a period of 2 years under Section 506 read with Section 34 of the IPC; and
(iv) to undergo rigorous imprisonment for 3 years and to pay a fine of Rs.10,000/- and in default of of payment of fine, to further undergo rigorous imprisonment for a period of 3 months under rt Section 201 read with Section 34 of the IPC.
73 All the sentences, as modified hereinabove, would run concurrently and shall be subject to appellants' exhibiting good conduct and in case the appellants or any of them fails to exhibit good conduct, then the State shall be at liberty to seek modification of the sentence.
74 In addition thereto, this Court directs the State to pay a sum of Rs.1,00,000/- (one lac) to the prosecutrix as "victim compensation" in terms of Rule 4 and 5 read with Entry 5 to the Schedule of compensation under the Himachal Pradesh (Victim of Crime) Compensation Scheme, 2012 (notified by notification No. Home (A) E (3) 43/2011, dated 6.9.2012) ::: Downloaded on - 06/09/2023 21:30:30 :::CIS 47 read with Section 357-A Cr.P.C. and to ensure that prosecutrix is duly informed about it within a week.
.
75 In view of aforesaid discussions, the instant appeal is partly allowed. Pending application(s) if any, also stands disposed of.
(Tarlok Singh Chauhan) Judge of (Ranjan Sharma) 4.9.2023 Judge (pankaj) rt ::: Downloaded on - 06/09/2023 21:30:30 :::CIS