Madhya Pradesh High Court
State Of M.P. vs Kalyan Singh on 28 August, 2006
Equivalent citations: 2006 CRI. L. J. 4454, 2007 (2) AJHAR (NOC) 413 (MPG), (2006) 4 MPLJ 350, (2007) 2 EASTCRIC 555, (2007) 49 ALLINDCAS 773 (MPG), (2007) 1 CRIMES 67, 2007 (57) ACC (SOC) 23 (MP)
Author: P.K. Jaiswal
Bench: P.K. Jaiswal
JUDGMENT Abhay Gohil, J.
1. State has filed this appeal under Section 377 of the Code of Criminal Procedure for enhancement of sentence being aggrieved by the judgment dated 22-6-1990 passed by Ilnd Additional District Judge to the Sessions Judge Vidisha in Sessions Trial No. 73/86, whereby the learned Judge convicted the respondent under Section 376, I.P.C. but sentenced him to undergone jail sentence, which was of five years and two months.
2. As per prosecution story on 23rd April, 1985, the compLalnant Moharsingh had gone to the village Kheroda alongwith his daughter (prosecutrix) aged abouf5 years for marriage of Sirnam Singh s/o. Harinarayan. 'Barat' had gone to village Belot Chakk. At Belot Chakk, Sanman Singh (P.W. 4) informed Mohar Singh that prosecutrix is missing and Kalyan Singh is also missing. Thereafter compLalnant, Harinarayan, Khilan Singh and Lalaram went to search the prosecutrix and came back to village Kheronda. When prosecutrix was not traceable, report of missing was lodged at P.S. Tyonda, which is Ex. P/1. Even after report the family members were involved in searching the girl. Bhagwan Singh (P.W. 10) was coming back from village Ghatera on bullock cart after leaving his sister Guddibai. In the way Machla also joined him. When they both reached near village Rochhai they found the prosecutrix and Kalyan Singh both under a tree. Seeing them Kalyansingh tried to run away but he was caught on the spot. Prosecutrix was lying unconscious. Blood was oozing from her vagina. Her undergarments were stained with blood. Thereafter both were brought at village Shekhpur on a bullockcart and report was lodged. In the way one Chunnilal also accompanied them. The another report Ex. P/2 was lodged by Mohar Singh and matter was investigated. The prosecutrix was referred to medical examination at Govt. Hospital at Tyonda, thereafter to District Hospital Vidisha, where she was examined by lady doctor Manju Jain (P.W. 1) in presence of Dr. Kusum Garg (P.W. 2). On examination, it was found that she was aged 5 years. She was having 5 plus 5 milk teeth in the jaw. She was restless having temperature of 99 degree. She was unable to walk and stand. The bladder was full up to umbilical cord. On external examination dried blood was found over both the thighs. Yellowish discharge over both labia majora present. After separating labia, mid line tear over skin up to external anal sphincter. Swab taken from the discharge out side the vulva and vagina and dried blood from thighs. Swab was sealed and handed over to constable. Underwear and frock having spot were also sealed and handed over to constable. Hymen was found torn up to 3 to 9 o' clock position. Tenderness ++. Vagina is covered with sluff. Upper portion of the hymen was red, conjested and inflamed and lacerated. In the opinion of the doctor, patient passed stool during the examination. In the opinion of the doctor rape was committed with the girl. She was referred to Dr. Kusum Garg, Gynaecologist for detailed examination and necessary action and information. Dr. Garg has also written her opinion. She also gave the same finding and it was found that she was subjected to rape.
3. The sealed packets were referred for chemical examination. Chemical examination report is Ex. P/11. As per this report on the underwear, frock and slides blood was found and the human sperm were also found on the undergarment, of the prosecutrix and on the Dhoti (Pancha) of the accused. The accused was also examined by Dr. S.K. Khatri (P.W. 9) and he was found fully competent to intercourse. After the investigation charge sheet was filed and the respondent was tried. Prosecution examined as many as 11 witnesses and after considering the evidence of the prosecution witnesses, trial Court found the appellant guilty under Section 376, I.P.C. and convicted him. While hearing on the question of sentence, it was pointed out that after amendment in 1993 in the IPC, the minimum sentence of ten years is prescribed for committing rape with a girl below the age of 12 years but the trial Court considering the age of the respondent as 26 years held that due to his sexual desire he could not restrain himself and committed rape with a minor and immature girl and reduced the same upto undergone jail sentence, which was around five years and two months including the period of remission of one year, against which the State has filed this appeal.
4. We have heard the learned Counsel for the parties and perused the evidence on record. There is no challenge to the conviction to the respondents. Sole question before this Court is whether the trial Court was justified in releasing the respondent on undergone jail sentence of five years and two months and whether the reasons assigned by the trial Court are adequate and special for reducing the sentence.
5. Sufficient evidence is available for committing rape with minor and immature girl. At the time of the trial the age of the respondent was 26 years as has been mentioned in the charge sheet. In the medical examination report Ex. P/4 his age has been mentioned as 26 years. From this evidence, it is clear that the respondent accused was a fully grown up man of 26 years on the date of commission of crime. There is also no dispute that the age of the prosecutrix was five years. She was a minor and immature girl having only 5 + 5 milk teeth in her jaw. Dr. Manju Jain (P.W. 1) and Dr. Kusum Garg (P.W. 2) both have clearly opined that she was subjected to rape. Her Hymen was found ruptured and she was also having internal and external injuries in the vagina. There was tenderness and she was compLalning severe pain. Vagina was covered with sluff. Upper part of the hymen was red, conjested and inflamed and lacerated. Therefore sufficient evidence is available in the case for committing rape with a minor and immature girl in a brutal manner.
6. Supreme Court repeatedly has held that in such circumstances only on recording adequate and special reasons for imposing sentence less than minimum prescribed sentence, which is ten years, can only be awarded, otherwise not. In the case of Kamal Kishore v. State of H.P. , the age of the girl was 12 years and the accused was aged 25 years. The Supreme Court has held that the reasoning is given by the High Court for imposing lessor sentence of three years Rule I. and fine of Rs. 10,000/- on the ground that since the offence took place ten years ago, the accused might have settled in life discarded and held that the same did not amount to adequate and special reasons under the provision and enhanced the sentence to 7 years imprisonment. Supreme Court placed reliance on the decision in the case of State of Karnataka v. Krishnappa . In that case the High Court had reduced the sentence of imprisonment to four years. Dr. A.S. Anand, C.J.I., as he then was, who authored the judgment of the Bench had stated thus (Paras 20 & 21 of Cri LJ):
The High Court justified the reduction of sentence on the ground that the accused-respondent was 'unsophisticated and illiterate citizen belonging to a weaker section of the society'; that he was a chronic addict to drinking and had committed rape on the girl while in a state of 'intoxication' and that his family comprising of 'an old mother, wife and children' were dependent upon him. These factors, in our opinion, did not justify recourse to the proviso to Section 376(2), I.P.C. to impose a sentence less than the prescribed minimum. These reasons are neither special not adequate. The measure of punishment in a case of rape cannot depend upon the social status of the victim or the accused. It must depend upon the conduct of the accused, the state and age of the sexually assaulted female and the gravity of the criminal act. Crimes of violence upon women need to be severely dealt with. The socio/economic status, religion, race, caste and creed of the accused or the victim are irrelevant considerations in sentencing policy. Protection of society and deterring the criminal is achieved by imposing an appropriate sentence. The sentencing Courts are expected to consider all relevant facts and circumstances bearing on the question of sentence and proceed to impose a sentence commensurate with the gravity of the offence.
"There are no extenuating or mitigating circumstances available on the record which may Justify imposing of any sentence less than the prescribed minimum on the respondent.
Supreme Court has further held in para 23 as under:
The expression "adequate and special reasons" indicates that it is not enough to have special reasons, nor adequate reasons disjunctively. There should be a conjunction of both for enabling the Court to invoke the discretion. Reasons which are general or common in many cases cannot be regarded as special reasons. What the Division Bench of the High Court mentioned (i.e. occurrence took place 10 years ago and the accused might have settled in life) are not special to the accused in this case or to the situation in this case. Such reasons can be noticed in many other cases and hence they cannot be regarded as special reasons. No catalogue can be prescribed for adequacy of reasons nor instances can be cited regarding special reasons, as they may differ from case to case.
7. Again in the case of Dinesh alias Buddha v. State of Rajasthan , Om Prakash v. State of Uttar Pradesh 2006 AIR SCW 2814 : 2006 Cri LJ 2913 and in the case of State of Madhya Pradesh v. Santosh Kumar 2006 AIR SCW 3608 : 2006 AIR SCW 3636, the question of imposition of proper sentence where the child was below the age of 12 years came up for consideration before the Supreme Court and in all the cases speaking for the Bench Hon'ble Justice Pasayat held that sentence must depend on the conduct of the accused, the state of and age of the victim and the gravity of the criminal act. Socio-economic status, religion, race, caste or creed of the accused or the victim are irrelevant considerations. Crimes of violence upon women need to be severely dealt with. Object of law to protect the society and deter the criminal to be achieved by imposing an appropriate sentence. Court to impose proper sentence commensurate with gravity of crime. When the rape was committed with the minor, there are no extenuating or mitigating circumstances available on the record which may justify imposition of any sentence less than the prescribed minimum and the plea of leniency was wholly misplaced. The Court has further held:
Sexual violence apart from being a dehumanising act is an unlawful intrusion on the right of privacy and sanctity of a female. It is a serious blow to her supreme honour and offends her self-esteem and dignity - 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 more indelibly leaves a scar on the most cherished possession of a woman i.e. her dignity, honour, reputation and not the least her chastity. Rape is not only a crime against the person of a woman, it is a crime against the entire society. It destroys, as noted by this Court in Bodhisattwa Gautam v. Subhra Chakroborty, the entire psychology of a woman and pushes her into deep emotional crises. It is a crime against basic human rights, and is also violative of the victim's most cherished fundamental right, namely, the right to life contained in Article 21 of the Constitution. The Courts are, therefore, expected to deal with cases of sexual crime against women with utmost sensitivity. Such cases need to be dealt with sternly and severely. A socially sensitised Judge, in our opinion, is a better statutory armour in cases of crime against women than long clauses of penal provisions, containing complex exceptions and provisions.
The physical scar may heal up, but the mental scar will always remain. When a woman is ravished, what is inflicted is not merely physical injury but the deep sense of some deathless shame. An accused can not cling lo a fossil formula and insist on corroborative evidence, even if taken as a whole, the case spoken to by the victim strikes a judicial mind as probable. Judicial response to human rights cannot be blunted by legal jugglery.
The measure of punishment in a case of rape cannot depend upon the social status of the victim or the accused. It must depend upon the conduct of the accused, the state and age of the sexually assaulted female and the gravity of the criminal act. Crimes of violence upon women need to be severely dealt with. The socio-economic status, religion, race, caste or creed of the accused or the victim are irrelevant considerations in sentencing policy. Protection of society and deterring the criminal is the avowed object of law and that is required to be achieved by imposing an appropriate sentence. The sentencing courts are expected to consider all relevant facts and circumstances bearing on the question of sentence and proceed to impose a sentence commensurate with the gravity of the offence. The courts must hear the loud cry for justice by society In cases of the heinous crime of rape on innocent helpless girls of tender years, as in this case, and respond by imposition of proper sentence. Public abhorrence of the crime needs reflection through imposition of appropriate sentence by the Court. There are no extenuating or mitigating circumstances available on the record which may justify imposition of any sentence less than the prescribed minimum on the respondent. To show mercy in the case of such a heinous crime would be a travesty of Justice and the plea for leniency is wholly misplaced.
8. In the case of Santosh Kumar (supra), the age of the prosecutrix was under 12 years. The High Court reduced the sentence Indicating the reason that he was of the young age and the fact that he belongs to the Scheduled Tribes and the Supreme Court has held that the same can by no stretch of imagination be considered either adequate or special reason, Requirement of law is cumulative and set aside the judgment of the High Court and restored the order of the Trial Court.
9. In this case too no doubt the age of the victim is five years. She is below 12 years of age. The age of the appellant was more than 26 years. He was a fully grown up man. He was fully knowing the consequences of committing the offence with a minor and Immature child of five years. When the child was found under the tree her condition was very critical. In the opinion of both the lady doctors, It was a case in which rape was committed with the child. She remained hospitalised and even was unable to give statement before the Court. She way having only five plus five milk teeth. The trial Court has only assigned the reason that he was a young man ad could not restrain himself from the sexual lust and therefore committed the offence. This reason cannot be said to be adequate and special reason for reducing the sentence. To that extent the Judgment of the Court below is wholly unsustainable. Under Section 376, IPC In such cases the sentence less than ten years cannot be awarded. Thus, considering the legal position as indicated above the order passed by the Sessions Judge Is clearly unsustainable and order of undergone of jail sentence i.e. five years and two months is set aside and he is sentenced to 10 years R.I.
10. Accordingly, this appeal filed by the State Is allowed. Judgment of the trial Court so far as awarding sentence is concerned, the same is modified and the respondent is sentenced to ten years R.I. The respondent is on bail, his bail bond Is forfeited. He is directed to surrender before the trial Court within 30 days, falling which trial Court shall have liberty to take him into custody for serving remaining jail sentence. However, it is directed that if any remission was allowed to respondent earlier, he shall be entitled to claim the same.