Gujarat High Court
State Of Gujarat vs Umeshbhai Rajubhai Thakor And Another on 28 August, 2014
Author: Anant S.Dave
Bench: Anant S. Dave, Sonia Gokani
R/CR.A/768/2011 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL NO. 768 of 2011
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE ANANT S. DAVE
and
HONOURABLE MS JUSTICE SONIA GOKANI
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1 Whether Reporters of Local Papers may be allowed to see
the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the
judgment ?
4 Whether this case involves a substantial question of law as
to the interpretation of the Constitution of India, 1950 or any
order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
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STATE OF GUJARAT
Appellant(s)
VERSUS
UMESHBHAI RAJUBHAI THAKOR AND ANOTHER
Opponent(s)/Respondent(s)
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Appearance:
MR JK SHAH, ADDL. PUBLIC PROSECUTOR for the Appellant(s) No. 1
MR MRUDUL M BAROT for HCLS COMMITTEE, ADVOCATE for the
Respondents.
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Page 1 of 69
R/CR.A/768/2011 CAV JUDGMENT
CORAM: HONOURABLE MR.JUSTICE ANANT S.
DAVE
and
HONOURABLE MS JUSTICE SONIA
GOKANI
Date : 28/08/2014
CAV JUDGMENT
(PER : HONOURABLE MS JUSTICE SONIA GOKANI)
1. By way of present preferred under section 377 of the Code of Criminal Procedure, 1973, the appellantState has prayed for enhancement of sentence in respect of the judgment and order of conviction and sentence dated January 28, 2011 passed by learned Additional Sessions Judge, Court No.10, Ahmedabad in Sessions Case No.225 of 2010.
2. Brief facts leading to the present appeal are as under:
2.1 Complainant Anjali Rakeshchandra Nair, studying her diploma course of Fashion Designing at National Institute of Design ("NID" for short) and a permanent resident of Delhi, was staying, as a paying guest, in Samay Apartment near NID, Paldi. On March 26, 2009, Page 2 of 69 R/CR.A/768/2011 CAV JUDGMENT while returning to her apartment at 01:00 a.m. from NID Studio, she found unknown boys near the main gate of NID. One aged 19 years and another aged 21 years. They were forcibly taking away one lady aged about 35 to 40 years.
The lady did not appear to be in a fit state of mind and, therefore, the complainant stopped those persons and enquired as to why she was being dragged. She was rebuked and replied to in abusive manner which also was scaring. She, of course, left for her apartment. However, after some time, at about 02:00 a.m, she heard someone in agony and when watched from her balcony, she found those two boys committing rape on the mentally unstable lady. She informed the same to her colleague, one Mr.Dhruv Rao, and also called the control room. Police reached the place. Three persons were found, one actually committing the act of sexual intercourse and one was juvenile. The complaint came to be filed with Ellis Bridge police station being IC.R.No.171 of 2009. One accused was below 18 years and a juvenile, he Page 3 of 69 R/CR.A/768/2011 CAV JUDGMENT was to be tried separately by the Juvenile Court. However, for the rest, on completion of investigation, chargesheet under sections 120B, 375, 376(2)(g) of the Indian Penal Code came to be submitted after verification of documents to the Court of learned Metropolitan Magistrate, Ahmedabad from where the committal was made to the Court of Sessions under section 209 of the Code of Criminal Procedure and the Sessions Case was registered being Sessions Case No.225 of 2010. When accused pleaded not guilty, prosecution examined in all 17 witnesses and totally 11 documentary evidences came to be proved during the course of the trial. 2.2 After appreciating the evidence, ocular and documentary, the Court held both the accused guilty of the offences of gang rape under sections 376(2)(g) read with sections 120B of the Indian Penal Code vide its order dated 28.1.2011.
3. The original accused no.1, respondent herein has been sentenced to undergo 10 years of rigorous Page 4 of 69 R/CR.A/768/2011 CAV JUDGMENT imprisonment and fine of Rs.5000/ and in default of paying the fine, further simple imprisonment for six months is directed whereas respondent no.2 original accused no.2 for the very offence is sentenced to undergo 5 years of rigorous imprisonment and fine of Rs.2000/ and in default of payment of fine simple imprisonment of two months is ordered. Not only there is anomaly in sentencing both the accused but also lesser punishment has aggrieved the State for not imposing maximum sentence as prescribed under the law. According to the State, no reasons have been given. Resultantly, the present appeal is preferred under section 377 of the Code of Criminal Procedure for modifying the impugned order and judgment and enhancing the period of sentence making the same to the maximum.
4. At the outset, it is to be noted that while challenging the order of conviction, no appeal has been preferred by either of the respondents, and therefore, as far as the the original accused respondents are concerned, the order and judgment Page 5 of 69 R/CR.A/768/2011 CAV JUDGMENT passed by the learned Sessions Judge has been accepted without murmur.
SUBMISSIONS :
3. Mr.J.K.Shah, learned Additional Public Prosecutor appearing for and on behalf of respondentState has forcefully submitted that as far as respondent no.2 is concerned the Court ought not to have sentenced him to 5 years. No special reasons are given nor are there any existing.
5.1 He further urged that the accused being young and having widowed mother is hardly the ground for the Court to sentence him only for the period of 5 years. On having pleaded the accused guilty of gang rape and the said act having been committed pursuant to the criminal conspiracy, for having committed gang rape on a mentally challenged lady, the maximum punishment ought to have been awarded. He has also further urged that the prosecution has duly proved the guilt of both the respondents and conviction when has not been challenged by Page 6 of 69 R/CR.A/768/2011 CAV JUDGMENT either side, the request is made on the part of the State to enhance the period of sentence for the offence of section 376(2)(g) of the Indian Penal Code.
6. Per contra, learned advocate Mr.Mrudul Barot appearing for both the respondents through High Court Legal Aid Services Committee, has fervently urged that prosecutrix victim has not been examined during the trial, which is vital to the case of the prosecution. Moreover, no injuries have been found on the person of the victim, particularly, when the story of dragging her has been alleged. He further urged that section 377 of the Code of Criminal Procedure provides that when the State files appeal on the ground of inadequacy, accused may plead for his acquittal or for reduction of the sentence. Therefore, the Court needs to examine all the contentions raised by the respondents. He further urged that there is no direct involvement of respondent no.2. It is only with the help of section 120B of the Indian Penal Code that he has been held guilty Page 7 of 69 R/CR.A/768/2011 CAV JUDGMENT and he being son of widowed mother is a sufficient and special reasons are already given by the Court.
6.1 Reliance is placed on the decision of this Court rendered in the case of Rajoo and ors. vs. State of Madhya Pradesh, reported in 2009(1) GLH 600 where the prosecutrix had not been examined. The T.I. Parade when is not carried out, the benefit according to the learned advocate, must go in favour of the respondents for which he has relied on the following decisions:
(i) Sonu Kumar vs. State of Himachal Pradesh, 2009(1)GLH 444.
(ii) Supabhai Vestabhai Vasava vs. State of Gujarat, 2012(3) GLH 905,and
(iii) Uttar Pradesh vs. Sanjay Kumar, 2012 (8) SCC
537.
6.2 According to the learned advocate for respondents, after undergoing the sentence of Page 8 of 69 R/CR.A/768/2011 CAV JUDGMENT five years, respondent No.2 is already out from the jail. He, therefore, urged not to interfere with the discretion of sentence exercised by the trial Court and instead to reduce the sentence of respondent No.1 by acquitting him of all the charges levelled against him.
7. On thus, having heard learned advocates for both the sides and on appreciation of material on the record, firstly provision of section 377 of the Code of Criminal Procedure requires reproduction under which the appeal has been preferred by the State Government.
"377. Appeal by the State Government against sentence.(1) Save as otherwise provided in subsection(2), the State Government may, in any case of conviction on a trial held by any Court other than a High Court, direct the Public Prosecutor to present an appeal against the sentence on the ground of its inadequacy
(a) to the Court of session, if the sentence is passed by the Magistrate; and Page 9 of 69 R/CR.A/768/2011 CAV JUDGMENT
(b) to the High Court, if the sentence is passed by any other Court.
(2) If such conviction is in a case in which the offence has been investigated by the Delhi Special Police Establishment, constituted under the Delhi Special Police Establishment Act, 1946 (25 of 1946), or by any other agency empowered to make investigation into an offence under any Central Act other than this Code, the Central Government may also direct the Public Prosecutor to present an appeal against the sentence on the ground of its inadequacy
(a) to the Court of session, if the sentence is passed by the Magistrate; and
(b) to the High Court, if the sentence is passed by any other Court.
When an appeal has been filed against the sentence on the ground of its inadequacy, the Court of Session or, as the case may be, the High Court shall not enhance the sentence except after giving to the accused a reasonable opportunity of showing cause against such enhancement and while showing cause, the accused may plead for his Page 10 of 69 R/CR.A/768/2011 CAV JUDGMENT acquittal or for the reduction of the sentence."
7.1 The State Government, in the event of conviction, may direct the Public Prosecutor to prefer an appeal against the sentence on the ground of inadequacy to the High Court if the sentence is passed by any other Court, which includes the Court of Sessions and when such appeal is filed against the sentence on the ground of inadequacy, a reasonable opportunity is required to be provided to the accused of showing cause against the enhancement. The accused may plead for his acquittal or reduction of the sentence while showing the cause. In the light of this provision, on the State preferring this appeal against the sentence on the ground of inadequacy, the original accused and the convicts have been given the opportunity of showing cause against such enhancement where they have pleaded for their acquittal as well as for reduction of the sentence while arguing the appeal. Page 11 of 69 R/CR.A/768/2011 CAV JUDGMENT 7.2 Of course, no separate written pleading is made either for acquittal or for reduction. However, considering the fact that both the accused are also represented in Legal Aid, no insistence for pleading in writing either for acquittal or for reduction is deemed necessary. With this note, it is to be examined whether the prosecution has proved the case beyond reasonable doubt and the order of learned Sessions Judge holding the accused guilty of gang rape pursuant to the criminal conspiracy is rightly passed or not.
OCCULAR EVIDENCE :
8. To appreciate the evidence, the witnesses are divided into three classes. (1) Eyewitnesses i.e. PW17 Anjali Rakeshchandra Nair, PW12 Dhruv Dwarkanath Rao and PW6 Raisinh Budhabhai Parmar (2) Medical Witnesses i.e. PW1 Dr.Bhavna Chanakyakumar Patel, PW5 Dr.Rohit Kaisischand Jain, PW8 Dr.Khyati Bhavin Mahetaliya, PW10 Dr.Chintan Kamleshbhai Solanki, PW11 Dr.Dipak Shantilal Mehta (3) Panchas i.e. PW2 Ramesh Maheru, PW3 Girish Rajubhai Dantani, PW4 Page 12 of 69 R/CR.A/768/2011 CAV JUDGMENT Chandubhai Becharbhai Nayak, PW7 Faruq Mehmudbhai Shaikh and investigating officers are PW15 Himatlal Mohanbhai Kundaliya and PW Valabhai Amrabhai Vaghela.
8.1 Taking firstly deposition of P.W.no.17 Anjali Nair, the complainant who had come from Delhi to do her diploma course of Fashion Designing at NID. She lived in Samay Apartment as a paying guest. On 26.3.2009, after completing her study at 1:00a.m. in the night while she was going to her apartment from near the gate, she saw two boys virtually pushing and dragging a lady who was shouting and crying. She found something mysterious, and therefore, enquired as to who they were and as to where she was being taken. One of them replied that she was a prostitute and they were taking her for eating and also abusively told her that, if she was interested she should also join. Those words scared her. She saw these boys taking her to the temple situated at NID. She turned towards garden of NID hostel and sat Page 13 of 69 R/CR.A/768/2011 CAV JUDGMENT there for a while and thereafter, she went to her apartment and while she was reading the book, she heard the shouts of a lady, therefore, she went to the balcony. She found a few people and switched off the lights, when she once again tried to gaze from her balcony, she found three boys on the Otta of the temple. One was trying to put on the pent, the other was trying to put on the cloths and was adjusting them. She strongly felt that something wrong was being committed and, therefore, woke up her colleague Shri Dhruv Rao. She also narrated him the story. They both went to the balcony where they found one boy committing rape on the lady, who was screaming and other two wearing and adjusting their shirts.
8.2 She called up the police from her mobile to inform that in a lane of NID, a temple is situated where some boys were misbehaving with a lady, and therefore, they should come fast. Within 10 minutes of such phone call when she Page 14 of 69 R/CR.A/768/2011 CAV JUDGMENT saw the police van from the balcony, she came down and police caught all the three boys. They were taken in the police van. In the meantime, she called other students and helped the victim to put on her cloths. Soon women police constables arrived and she gave a complaint in Hindi, which was translated by the police in Gujarati. From those caught by the police, one who was seen committing rape was Umesh. She had not remembered the names correctly but, however, from their faces, she could recognize. The prosecutrix had one pink coloured skirt, and pistachio coloured top and she had worn yellow coloured dupatta. She identified those cloths before the Court. The lady was not in a right sense of her mind. She was mentally unstable and was not comprehending when anything was being questioned.
8.3 In an extensive crossexamination, this witness has answered scorching questions. In an elaborate crossexamination, complainant agreed that she did not intimate the police the first Page 15 of 69 R/CR.A/768/2011 CAV JUDGMENT time when she challenged those boys who were pushing and dragging the lady. She was tensed and was unable to decide what needs to be done at her end. A watchman at Samay Apartment was sleeping when she entered. She, of course, had witnessed the incident from the balcony of her apartment. The street light was situated at a distance of about 25 feet. She was sure that those who had pushed the lady were the same boys. When the police came, the boy had continued to rape the lady. Thus, after she went to lodge the complaint at the police station, she could come to know the names of the accused. The lady victim was unable to comprehend anything. She was admitted to the hospital for her physical treatment as well as for mental treatment. After a while, her family had come to take her back and she could come to know about her name from the newspaper. 8.4 Her colleague PW12 Dhruv Rao was also studying at NID in the course of National Institute of Film Design. He was studying in Page 16 of 69 R/CR.A/768/2011 CAV JUDGMENT the second year and was living on the 5th floor of Samay Apartment. The complainantAnjali woke him up on 26.3.2009 and was concerned about the lady who was being raped. They both saw it from the balcony after switching off the light and they, in fact, found two boys arranging and adjusting their cloths whereas one was committing rape. The complainantAnjali intimated the police and before they could get down, the police was there and caught all the three boys. The victim was mentally retarded and incoherent. They brought a bedsheet to cover her. She was unable to answer her name. She was taken to police station by Anjali herself and other students and it was Anjali who gave her complaint. He identified Umesh as one who was committing the rape with the victim. He also identified respondent no.2 and stated that the third accused was not in the Court (for he was being tried by the Juvenile Court).
Page 17 of 69 R/CR.A/768/2011 CAV JUDGMENT 8.5 The entire thrust of this crossexamination is that it was too late for Anjali to be out at those odd hours. Nothing, in the cross examination emerged which would shake the deposition of this witness which is again of sterling quality. He denied the suggestion that on the raised platform of temple many people ordinarily were sleeping. According to him, nobody was sleeping on that night and even the priest of the temple does not sleep there, but he used to come in the morning.
8.6 Police personnel PW6 Raisinh Budhabhai Parmar, who has been examined vide Exhibit 27, a Head Constable of Ellis Bridge police station, who on receiving the Vardhi from the complainant while patrolling in the area, had reached to the place of incident in the station vehicle no.1, has also, on the same lines, deposed before the Court.
His crossexamination does not dislodge any of the details given by him. He also Page 18 of 69 R/CR.A/768/2011 CAV JUDGMENT indicated the presence of the complainant Anjali. It was the complainantAnjali and other girl who had ensured that the clothes of the victim are to be in order. It was this witness who had removed the respondent No.1 from over the victim. According to him, the respondent No.1 was wearing a purple shirt and his pant was half worn. According to him also, the victim was mentally challenged and the complaint in this respect was given by the complainantAnjali. Pursuant to the message received from the Control Room while they were on patrolling at 0235 a.m., he had reached the place with his colleagues.
This witness has categorically stated in his evidence that when they reached at the place of incident, he had seen one boy raping the victim lady and two boys were standing beside him. He has also stated that the said lady appeared to be mentally challenged. They had arrested the boy who was raping the lady and also other two boys who were standing Page 19 of 69 R/CR.A/768/2011 CAV JUDGMENT beside him. Nothing contrary has been brought out from the evidence of this witness. 8.7 PW13 Hemlata Rathod was discharging her duty as a woman Police Constable on the fateful day. The victim, who was mentally ill, was taken to Civil Hospital. Some of the samples drawn by the doctors were handed over by this witness to the Investigating Officer and on March 27, 2009, the victim was taken to Mental Health Hospital at Delhi Darwaja, Ahmedabad. 8.8 PW14 Jitendrabhai Hirjibhai Chavda, who has been examined vide Exhibit 45, states in his deposition that he was performing his duty at Ellisbridge Police Station in March, 2009. On March 26, 2009, he had taken all the accused persons to the Civil Hospital and nearly 15 bottles were handed over to him for handing over the same to the Investigating Officer. The panchnama to that effect was also carried out. Two of the accused were major and one was minor. They needed to wait for 15 minutes to 20 Page 20 of 69 R/CR.A/768/2011 CAV JUDGMENT minutes as the doctor was examining other patients. It took about 3 to 4 hours. He agreed that the victim was in a position to speak, however, according to him, she was uttering incoherently. According to the Investigating Officer, PW15, the then Police Inspector, Ellisbridge Police Station, the Police Control room had given message at 0227 a.m. to the Ellisbridge Vehicle No.1 and they had caught the accused right from the place of the offence. Soon thereafer, the complainant, the victim and others reached. The complainant was recorded at 0410 a.m. He was intimated by the P.S.O. at 0342 a.m. In the chargesheet, this officer says that the name of the victim and the whereabouts of her relatives could be obtained. He also was aware that the victim was discharged from the mental hospital, however, the discharge certificate is not a part of the chargesheet papers.
This brings us to the evidence of witnesses connected with the medical field. Page 21 of 69 R/CR.A/768/2011 CAV JUDGMENT 8.9 PW1 Dr.Bhavna Chanakyakumar Patel, who has been examined vide Exhibit 10, has deposed that she was serving as a Medical Officer at Civil Hospital. At around 1230 p.m., a woman Police Constable bearing Buckle No.9521 came to her with a patient who was an unknown lady and from the very first look, it was made clear that she was mentally challenged. The woman Police Constable gave history that on March 25, 2009, one Anjali Nair called Police Control Room and accordingly, when PCR Van reached the place of incident, three persons were raping a lady near National Institute of Design (NID), Paldi. The incident had occurred near a temple on an 'otta'. The clothes worn by the lady were also seized and new clothes were given to her. No history with regard to her bath or natural calls could be gathered. The victim was gibbering. There was no sign of injury on the person of the victim. Her vaginal swab and urethral swab were taken and handed over to the woman Police Constable. The victim was referred to the expert Dr.Doshi and Dr.Rohit Jain. She Page 22 of 69 R/CR.A/768/2011 CAV JUDGMENT was required to be under observation for further monitoring her. Nothing adverse to the prosecution case is brought on record in her crossexamination. Reference to Dr.Rohit Jain, Gynaecologist, was made, who examined her. From the angle of Gynaecologist, she was not cooperative at all. According to PW1, if there is a presence of semen in her vaginal swab, it would amount to recent sexual intercourse. She had no internal or external injuries on her private parts.
After examination of victim by the Gynaecologist, the victim was referred to PW10 Dr.Chintan.
8.10 PW10 Dr.Chintan Kamleshbhai Solanki, Medical Officer, who was serving at Civil Hospital, Ahmedabad in the month of March, 2009, as a Psychiatrist, has been examined vide Exhibit 36, he has deposed that the victim was admitted in the hospital on March 26, 2009 and thereafter, she was referred to this doctor on Page 23 of 69 R/CR.A/768/2011 CAV JUDGMENT March 27, 2009. She was unable to sleep peacefully in the bed. Her clothes were not properly worn. She had the habit of speaking to herself. If anything was questioned to her, she would slap the person. She would pass urine and toilet in her clothes. She would not eat properly nor would she be able to sleep. Patient was not cooperative and, therefore, the history was not possible to be obtained from her. The diagnosis was Psychosis NOS. She was mentally ill.
8.11 According to this witness, there are 360 kinds of mentally ill patients, whereas idiot is not a mentally ill person. Broadly, there are three kinds:(1) Biological, on account of certain deficiency of chemicals which can be attributed to the genes; (2) Social reasons and (3) Mental reasons. This witness has further admitted that he was unable to state as to under which of the aforesaid categories the victim would fall for want of history made available of the victim. In some cases, Page 24 of 69 R/CR.A/768/2011 CAV JUDGMENT according to the doctor, the victim may recover, but there would be no guarantee to the same. He emphatically denied the suggestion that the victim was not suffering from any disease and merely to hide her privacy, she was putting on a play. According to this doctor, the victim was referred to Mental Hospital at Delhi Darwaja.
8.12 It is necessary at this stage to refer to the deposition of PW8 Dr.Khyati Bhavin Mahetaliya, who has been examined vide Exhibit 32, who is a psychiatrist and who had treated the victim lady. The victim was taken to the said hospital treating mentally challenged patient by the police on September 25, 2009. She used to speak to herself and laugh without there being any reason. She also used to abuse and was speaking the language which was not comprehensible. She had no sense of looking after herself and even to attend to her routine chores of the body; nor was she having any sense of her clothes. She was very weak in her Page 25 of 69 R/CR.A/768/2011 CAV JUDGMENT food habits and was having signs of Schizophrenia. She was given an electric shock and thereafter it could be revealed that she was from Allahabad and thereafter, her relatives were contacted and it was revealed that she was suffering from Schizophrenia for the last eight years and she was found missing for the last nearly five years. She was under
treatment from March 27, 2009 and thereafter, her brother and husband had taken her away taking the discharge from the hospital.
8.13 She agreed in her crossexamination that there is difference between a lunatic and an idiot. An idiot would have less understanding and a lunatic will have no clue as to what is happening around him/her. She discarded the suggestion that idiocy is inherited by a person. According to her, even after her treatment, she could improve barely at the rate of 50% to 60% and she was unable to link to her past incidents which happened with her. She categorically denied unpalatable suggestion in Page 26 of 69 R/CR.A/768/2011 CAV JUDGMENT the defence that the lady was not mentally retarded or lunatic, but was in fact a prostitute and when she had come to her, she could speak and understand properly.
8.14 Here it is necessary to have a close look at the deposition of PW11 Dr.Dipak Shantilal Mehta, who has been examined vide Exhibit 37, who had examined all the three accused persons, which included both the accused who are respondents herein. The history given by the respondent No.2 when he was brought for examination on March 26, 2009 is also revealed where, he had stated that on March 25, 2009, when they were going for dinner, at around 11 O'clock at the end of Sardar Patel Bridge, 4 to 5 persons were harassing a lady. They saved her driving those persons away. While they were returning, the lady followed them and near the National Institute of Design on the raised platform of Baliyadev Temple, they slept and the lady also slept with them and, therefore, all the three of them had sexual intercourse Page 27 of 69 R/CR.A/768/2011 CAV JUDGMENT with her turn by turn. The sample of his blood, semen, saliva, glance wash, etc. were collected and handed over to the Police.
Likewise, the respondent No.1 also gave the similar history to this doctor i.e. PW11. 8.15 This doctor PW11 in his crossexamination did not agree to the suggestion that the history is written on the basis of the Police Yadi. He disagreed to the suggestion that the history was not recorded in the words of the accused. In the crossexamination, he also volunteered to say that after the Police had gone, the history has been recorded. It is not necessary that the injuries would be found on the person of the victim if the act of sexual intercourse is committed on such raised platform. He also disagreed to the suggestion that media had given much prominence to this incident and he was guided by the police force. 8.16 Exhibits 38 and 39 are the documents dated March 28, 2009 containing history given by the Page 28 of 69 R/CR.A/768/2011 CAV JUDGMENT respondents themselves. The muddamal articles sent to the Forensic Science Laboratory vide despatch note Exhibit 49 contained clothes of the prosecutrix and those of the accused. Over and above that, the samples collected by the doctor at the Civil Hospital being saliva, blood, semen, pubic hair, glance wash of both the accused, etc. also were a part of such despatch.
The blood sample, pubic hair, vaginal wash, three vaginal swabs which were collected are at Sr. No.A3, A4/1 and A4/2, urethral swab and salivary swab; there are two vaginal slides being A5/1 and A5/2 and urethral slides. Even the report of the Forensic Science Laboratory is also at Exhibit 51.
8.17 This would bring the Court to the deposition of the panch witnesses, who have not supported the case of the prosecution. The panch witnesses 2, 3, 4, 7 and 9 have chosen not to support the case, which include the panchnama of clothes of the accused, various Page 29 of 69 R/CR.A/768/2011 CAV JUDGMENT samples handed over by the doctor to the Police Constable. They, however, have not disputed their signatures on the respective panchnamas. In any case, when the doctors are very specific about handing over these samples to the Investigating Officer and the Investigating Officers also have in turn been categorical about not only having received the same, but having forwarded the same to the Forensic Science Laboratory and the report of the Forensic Science Laboratory (at Exhibit 51) is otherwise admissible under section 294 of the Criminal Procedure Code, 1973, nonsupport by the panch witnesses cannot assume much importance.
9. On overall examination of the entire material, which has come on record and on due appreciation of the ocular as well as documentary evidence, it can be unhesitatingly concluded that the learned Sessions Judge committed no error at all in holding that the involvement of both the respondents in committing gang rape as defined Page 30 of 69 R/CR.A/768/2011 CAV JUDGMENT under section 376(2)(g) of the Indian Penal Code on the victim, who was mentally challenged is duly proved.
10. Mainly the contentions raised on the part of the defence are three folds :
(a) Nonexamination of the prosecutrix;
(b) Noninvolvement of the respondent No.2 and
(c) Lack of scientific evidence and sentencing policy.
10.1 Reliance is placed on two decisions by the learned counsel for the respondents on the cases of Sonu Kumar v. State of Himachal Pradesh, reported in 2009(1) GLH 444 and Rajoo and others v. State of M.P., reported in 2009(1) GLH 600.
10.2 In the case of Sonu Kumar (supra), the Apex Court found that there was no evidence leading to show the presence of appellant at the spot of occurrence. Accused not found present unlike others at the place of occurrence and the Court Page 31 of 69 R/CR.A/768/2011 CAV JUDGMENT found that the charges are not proved and he was acquitted accordingly.
10.3 In Rajoo and others (supra), the Court held that presumption as to absence of consent in certain prosecutions of rape as provided under section 114A is extremely restricted in its applicability unlike sections 113A and 113B. In the case of allegation of rape, the evidence of prosecutrix must be examined as that of injured witness, but her statement without any evidence cannot be taken as gospel truth. The Test Identification Parade of the accused also was not found in accordance with law and was held to be a farce and meaningless. The Court in the said authority found falsity inextricably intertwined with the truth where there was no possibility to discern where one ends and the other begins.
10.4 The facts which were before the Apex Court in both these cases are completely absent in the present case. The evidence, ocular and Page 32 of 69 R/CR.A/768/2011 CAV JUDGMENT otherwise, brought on record by the prosecution would materially govern each case. It is the law which needs to be applied to the facts and law laid down by the Apex Court binds this Court, however, the facts of the present case are glaring and lead to single most conclusion of guilt of the accused.
(a) NONEXAMINATION OF PROSECUTRIX :
10.5 As is very apparent and transpire from the depositions of not only the PW17 complainant and her colleague Dhruv PW12, but also from the deposition of medical experts who have examined the prosecutrix, being PW1 Dr.Bhavna Chanakyakumar Patel, PW5 Dr.Rohit Jain, PW8 Dr.Khyati Mahetaliya, PW10 Dr.Chintan Solanki and PW11 Dr.Dipak Mehta, that the prosecutrix was mentally challenged and her condition was pathetic to the effect that she was unable to control her natural calls also. She had no sense of her clothes, nor of her diet or sleep.
It was after the shock treatment that the prosecutrix could remember her name and her whereabouts. Thereafter, her brother and Page 33 of 69 R/CR.A/768/2011 CAV JUDGMENT husband were called from Allahabad. When it was realised that she was found missing for the past five years and she had suffered such mental condition for more than eight years. All the doctors in the crossexamination were categorical that she would neither be in a position to depose nor would she remember the incident which had occurred with her. Her condition was not different to be known even for those meeting her the first time. The respondentsaccused having known her such mental condition and her abode on the footpath have taken a sheer disadvantage of mental state to satiate their lust. Keeping in mind the entire evidence of the prosecution, this ground raised by the respondentconvicts is not at all entertainable. Even if the victim recovered to the extent of 40% t0 50%, she was not fit to depose before the Court.
10.6 The Evidence Act in Chapter IX of Witnesses under section 118 prescribes that all persons shall be competent to testify, unless the Court Page 34 of 69 R/CR.A/768/2011 CAV JUDGMENT considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind.
10.7 In explanation to this provision provides that a lunatic is not incompetent to testify, unless he is prevented by his lunacy from understanding the questions put to him and giving rational answers to them. The doctor was also asked the difference between a lunatic and an idiot. In every which way when attempts made in the crossexamination of various witnesses, what emerged was that the prosecutrix was incompetent to testify and the learned trial Judge has rightly not insisted upon her examination as apparently she was prevented on account of her mental illness of a grave kind to testify as a witness and her mental state would render her to be an incompetent witness. Page 35 of 69 R/CR.A/768/2011 CAV JUDGMENT Ordinarily, in rape cases, examination of prosecutrix victim is a must as her testimony plays a key role. Hence, considering the incapacity of the victim to testify as a witness under the law and in wake of plethora of evidences establishing her mentally challenged condition, this ground is not finding favour with the Court.
(b) NONINVOLVEMENT OF ACCUSED NO.2 :
10.8 With regard to the second contention as far as the respondent No.1Umesh is concerned, he was found actually committing rape and he was found in that condition when the Police arrived and removed him from over the prosecutrix. It is very rare that the perpetrator of crime of rape could be found in such a condition or there would be possibility of anybody eye witnessing such incident other than the victim herself. Occurrence of incident was at a public place and on account of vigilance of the student of National Institute of Design, they could be caught redhanded. This student was Page 36 of 69 R/CR.A/768/2011 CAV JUDGMENT visibly upset from the very beginning, the way the prosecutrix was being treated by these respondents when the victim was dragged earlier when she confronted these persons. However, because of their utterances which not only were insulting to the victim, but also abusing when they spoke in double meaning and implicitly threatened her of the same fate, she was scared and was unable to resist their act at the relevant point of time. Although, later on having heard the victim screaming and then on witnessing the deplorable act, she mustered courage and called the Police instantly and also with the help of her own colleague, saw to it that the respondentsconvicts were caught and such prompt act on the part of both these students, more particularly of the complainant Anjali Nair led to arrest of the respondents convicts right from the place of incident. The respondent No.2 was found adjusting his clothes and the Forensic Science Laboratory report indicates that his clothes also had presence of semen. The dupatta of the prosecutrix also Page 37 of 69 R/CR.A/768/2011 CAV JUDGMENT contained the semen which contained blood group 'A', which belong to both the respondents.
10.9 We need to note specifically at this stage that although the prosecution has collected various samples and also has ensured examination of the same by the Forensic Science Laboratory, in a case of gang rape, it is expected that when there is possibility of presence of semen of more than one person, the DNA Test would be a must to be performed. It is true that in the present case, the prosecution fell short of performing the said test, however, considering peculiar facts existing in this case and other voluminous evidence, the same is rightly not held fatal to the case of the prosecution in the present case. The involvement of the respondent No.2convict pursuant to the criminal conspiracy is again rightly held to have been proved by the trial Court and we see no reason to interfere with such findings as the same are based on sound reasonings and on independent examination also, Page 38 of 69 R/CR.A/768/2011 CAV JUDGMENT we could conclude that there is plethora of evidence to substantiate the same.
11. It needs to be noted that the Court has held accused guilty under section 376(2)(g) read with section 120B of the Indian Penal Code. Whosoever is a party to the criminal conspiracy to commit an offence can be held guilty under section 120B of the Indian Penal Code. Section 120A of the Indian Penal Code defines criminal conspiracy, which reads as under :
"120A : Definition of criminal conspiracy. When two or more persons agree to do, or cause to be done, (1) an illegal act, or (2) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy: Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof.
Explanation.It is immaterial whether the illegal act is the ultimate object of such agreement, or is merely incidental to that object."
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11. At this stage, relevant would be to refer to section 10 of the Indian Evidence Act, 1872, where anything said or done by the conspirator in reference to the common design is held admissible against all. This provision is enacted in order to make an act of coconspirator admissible against the rest of them considering the nature of crime. The words "common intention" as held in the case of Mirza Akbar v. King Emperor, reported in AIR 1940 PC 176, "signify a common intention existing at the time when the thing as said, done or written by one of them". It had nothing to do with the carrying out the conspiracy into effect. Relevant would be to reproduce section 10 of the Indian Evidence Act, which reads as under :
"10. Things said or done by conspirator in reference to common design Where
(a) the existence of a conspiracy to commit an offence or an actionable wrong, or the Page 40 of 69 R/CR.A/768/2011 CAV JUDGMENT fact that any person was a party to such a conspiracy, is a fact in issue or a relevant fact; and
(b) the question is whether two or more persons have entered into such conspiracy, anything said, done or written by any one of such persons in reference to their common intention, after the time when such intention was first entertained by any one of them, is a relevant fact as against each of the persons believed to be so conspiring, as well for the purpose of proving the existence of the conspiracy as for the purpose of showing that any such person was a party to it."
11. As held by the Apex Court in the case of Om Prakash v. State of Haryana, reported in (2011) 14 SCC 309, the common intention can be gathered from the act of the offenders and discussed at length the essential ingredients in the case of provision of section 376(2)(g) of the Indian Penal Code with a particular emphasis on Explanation1, which is reproduced as under :
"376(1) xxx xxx Page 41 of 69 R/CR.A/768/2011 CAV JUDGMENT (2) Whoever,
(a) being a police officer commits rape
(i) within the limits of the police station to which he is appointed; or
(ii) in the premises of any station house whether or not situated in the police station to which he is appointed; or
(iii) on a woman in his custody or in the custody of a police officer subordinate to him; or
(b) being a public servant, takes advantage of his official position and commits rape on a woman in his custody as such public servant or in the custody of a public servant subordinate to him; or
(c) being on the management or on the staff of a jail, remand home or other place of custody established by or under any law for the time being in force or of a women's or children's institution takes advantage of his official position and commits rape on any inmate of such jail, remand home, place or institution; or
(d) being on the management or on the staff of a hospital, takes advantage of his Page 42 of 69 R/CR.A/768/2011 CAV JUDGMENT official position and commits rape on a woman in that hospital; or
(e) commits rape on a woman knowing her to be pregnant; or
(f) commits rape on a woman when she is under twelve years of age; or
(g) commits gang rape, shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may be for life and shall also be liable to fine: Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment of either description for a term of less than ten years.
Explanation 1. Where a woman is raped by one or more in a group of persons acting in furtherance of their common intention, each of the persons shall be deemed to have committed gang rape within the meaning of this sub section."
13.1 The Apex Court has discussed other judicial pronouncements on the subject to conclude that plain reading of section 376(2)(g) of the Page 43 of 69 R/CR.A/768/2011 CAV JUDGMENT Indian Penal Code with Explanation1 shows that where the woman is raped by one or more persons in a group acting in furtherance of their common intention, each of the persons shall be deemed to have committed gang rape within the meaning of section 376(2)(g) of the Indian Penal Code. Therefore, any act of gang rape done in furtherance of common intention of the accused shall attract a deeming fiction of law against the accused.
13.2 Therefore, what is necessary for the prosecution is to adduce the evidence that the accused had acted in concert. In such event, the rape committed by one person would hold the rest guilty irregardless of the fact that each of them had not committed rape on the victim. The Court has also held that common intention presupposes prior concert as there must be meeting of minds which may be determined from the conduct of the offenders revealed during the course of action. The Apex Court in this case also has held and observed that in a case of gang rape while appreciating the evidence, Page 44 of 69 R/CR.A/768/2011 CAV JUDGMENT the small discrepancies or minor contradictions cannot be treated as fatal to the prosecution case because of the lapse of time, educational and other background of the witnesses, that may erupt. However, the Court needs to examine everything in its entirety in correct perspective and in light of the circumstances brought on record.
13.3 The proof of the concert or the common concert writ large in the present case from the evidence of the complainantAnjali Rakeshchandra Nair in the present case. At about 1 O'clock when the victim was being dragged forcibly, such conduct of the accused, their intention was quite apparent and pursuant to such common design, when each of them had been found at the place of incident, one indulging into act and the other adjusting his clothes and the third one also guarding the place, couple with the history given to the doctor and other witnesses discussed hereinabove, indisputably lead to conclusion of Page 45 of 69 R/CR.A/768/2011 CAV JUDGMENT fulfillment of explanation 1 to section 376(2)
(g) of the Indian Penal Code and, therefore, even in absence of the version of the prosecutrix when the Court has held the involvement of both the accused convicting them under the said provision, no error at all is committed.
DISCREPANCY BETWEEN OCCULAR AND MEDICAL EVIDENCE:
14. The third point which has been emphasised is lack of scientific evidence to prove beyond reasonable doubt the guilt of the accused. It is well laid down principle that in the event of any discrepancy between the ocular and medical evidence, primacy is always given to the ocular evidence unless the medical evidence is so disproportionately adverse to the ocular evidence that it is impossible for any reasonable person to accept such a version.
14.1 So as not to make the present judgment bulky, reference of only one decision of Apex Court in the case of Abdul Sayeed v. State of Page 46 of 69 R/CR.A/768/2011 CAV JUDGMENT Madhya Pradesh etc., reported in (2010) 10 SCC 259, would be necessary. It would be profitable to reproduce the relevant portion of the said decision as under :
"34. Drawing on Bhagirath's case (supra.), this Court has held that where the medical evidence is at variance with ocular evidence, "it has to be noted that it would be erroneous to accord undue primacy to the hypothetical answers of medical witnesses to exclude the eyewitnesses' account which had to be tested independently and not treated as the "variable" keeping the medical evidence as the "constant"".
35. Where the eyewitnesses' account is found credible and trustworthy, a medical opinion pointing to alternative possibilities can not be accepted as conclusive. The eyewitnesses' account requires a careful independent assessment and evaluation for its credibility, which should not be adversely prejudged on the basis of any other evidence, including medical evidence, as the sole touchstone for the test of such credibility.
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"21. .. .. The evidence must be tested for its inherent consistency and the inherent probability of the story; consistency with the account of other witnesses held to be creditworthy; consistency with the undisputed facts, the "credit" of the witnesses; their performance in the witness box; their power of observation etc. Then the probative value of such evidence becomes eligible to be put into the scales for a cumulative evaluation."
(Vide Thaman Kumar v. State of Union Territory of Chandigarh, (2003) 6 SCC 380; and Krishnan v. State, (2003) 7 SCC 56).
36. In Solanki Chimanbhai Ukabhai v. State of Gujarat, AIR 1983 SC 484, this Court observed, "Ordinarily, the value of medical evidence is only corroborative. It proves that the injuries could have been caused in the manner alleged and nothing more. The use which the defence can make of the medical evidence is to prove that the injuries could not possibly have been caused in the manner alleged and thereby discredit the eye witnesses. Unless, however the medical evidence in its turn goes so far that it completely rules out all possibilities whatsoever of injuries taking place in the manner alleged by eyewitnesses, the testimony of the eyewitnesses cannot be Page 48 of 69 R/CR.A/768/2011 CAV JUDGMENT thrown out on the ground of alleged inconsistency between it and the medical evidence." [Emphasis added]
37. A similar view has been taken in Mani Ram & Ors. v. State of U.P., 1994 Supp (2) SCC 289; Khambam Raja Reddy & Anr. v. Public Prosecutor, High Court of A.P., (2006) 11 SCC 239; and State of U.P. v. Dinesh (2009) 11 SCC 566.
38. In State of U.P. v. Hari Chand, (2009) 13 SCC 542, this Court re iterated the aforementioned position of law and stated that, "In any event unless the oral evidence is totally irreconcilable with the medical evidence, it has primacy."
39. Thus, the position of law in cases where there is a contradiction between medical evidence and ocular evidence can be crystallised to the effect that though the ocular testimony of a witness has greater evidentiary value vis`vis medical evidence, when medical evidence makes the ocular testimony improbable, that becomes a relevant factor in the process of the evaluation of evidence. However, where the medical evidence goes so far that it completely rules out all possibility of the Page 49 of 69 R/CR.A/768/2011 CAV JUDGMENT ocular evidence being true, the ocular evidence may be disbelieved."
14.1 Reliance is placed on the decision of this Court by the defence in the case of Supabhai Vestabhai Vasava v. State of Gujarat, reported in (2012) 3 GLH 905, where the Court had frowned upon the admission of one of the panchnamas by the defence counsel. Taking recourse to section 294 of the Criminal Procedure Code, 1973, the Court held that this provision is not meant for circumventing the provisions of the Evidence Act and in particular, when the witnesses are necessary to be examined for proving the contents of such documents and, therefore, the document which is not a substantive evidence by itself and the contents of which needs to be deposed by a witness must never be tendered in evidence by following section 294 of the Criminal Procedure Code, 1973 and this Court while so holding followed the decision of Kalu Raghav and another v. State of Gujarat, (1976) 17 GLR
988. In the present case, the report of the Page 50 of 69 R/CR.A/768/2011 CAV JUDGMENT Forensic Science Laboratory has been admitted invoking provision of section 294 of the Criminal Procedure Code, 1973. A combined reading of sections 293 and 294 of the Criminal Procedure Code, 1973 and the ratio relied upon by the defence, as laid down in the case of Supabhai Vestabhai Vasava (supra) would in no manner preclude the admission of such report without any formal proof. This on the contrary, is for the purpose of accelerating the pace of criminal trial by dispensing with formal proof of such specified documents, particularly, the report of the Government Scientific Expert as detailed in provision of section 293 of the Criminal Procedure Code, 1973. Hence, this contention of the defence also is not found sustainable.
(c) SENTENCING :
15. With that the most vital aspect of the challenge made by the State to the sentence awarded in the present case to both the accused Page 51 of 69 R/CR.A/768/2011 CAV JUDGMENT shall have to be considered. The law on the subject is also necessary to be considered before adverting to the facts.
15.1 The Apex Court in the case of Jameel v.
State of Uttar Pradesh, reported in (2010) 12 SCC 532, has reiterated the general policy with regard to sentencing. It would be profitable to reproduce the relevant portion of the said decision as under :
"14. The general policy which the courts have followed with regard to sentencing is that the punishment must be appropriate and proportional to the gravity of the offence committed. Imposition of appropriate punishment is the manner in which the Courts respond to the society's cry for justice against the criminals. Justice demands that Courts should impose punishment befitting the crime so that the Courts reflect public abhorrence of the crime.
15. In operating the sentencing system, law should adopt the corrective machinery or deterrence based on factual matrix. By deft modulation, sentencing process be stern Page 52 of 69 R/CR.A/768/2011 CAV JUDGMENT where it should be, and tempered with mercy where it warrants to be. The facts and given circumstances in each case, the nature of the crime, the manner in which it was planned and committed, the motive for commission of the crime, the conduct of the accused, the nature of weapons used and all other attending circumstances are relevant facts which would enter into the area of consideration.
16. It is the duty of every Court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed. 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."
15.1 In the case of State of Karnataka v. Krishnappa, reported in (2000) 4 SCC 75, the Apex Court was dealing with the case of a prosecutrix, who was aged 8 years and the respondent was aged 49 years, ascertaining that the prosecutrix's mother and father were not at home, had raped her. The trial Court had Page 53 of 69 R/CR.A/768/2011 CAV JUDGMENT awarded sentence of 10 years rigorous imprisonment, whereas the High Court in appeal took into account that the accused was an illiterate person, belonged to Scheduled Caste and was an chronic addict to drinking and had committed rape under the effect of intoxication and had an old mother, wife and children as his dependents, reduced the sentence to four years' rigorous imprisonment by maintaining sentence of fine.
15.2 When this was challenged before the Apex Court, the Apex Court held that the circumstances relied upon by the High Court were neither adequate nor special reason for reducing the sentence. The Apex Court explained the adequacy of reasons and also reiterated the object of punishment and theory of deterrence by holding and observing that the Court should impose sentence commensurate with the gravity of offence having regard to the facts and circumstances of the case. It would be Page 54 of 69 R/CR.A/768/2011 CAV JUDGMENT beneficial to reproduce the relevant paragraph of the said decision as under :
"18. The High Court, however, differed with the reasoning of the trial Court in the matter of sentence and, as already noticed, the reasons given by the High Court are wholly unsatisfactory and even irrelevant. We are at a loss to understand how the High Court considered that the "discretion had not been properly exercised by the trial Court." There is no warrant for such an observation. The High Court justified the reduction of sentence on the ground that the accusedrespondent 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 S. 376(2), I.P.C. to impose a sentence less than the prescribed minimum. These reasons are neither special nor 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 Page 55 of 69 R/CR.A/768/2011 CAV JUDGMENT 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. 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. Courts must hear the loud cry for justice by the society in cases of 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 to the respondent. To show mercy in the case of such a heinous crime would be travesty of justice and the plea for leniency is wholly misplaced. The High Court, in the facts and circumstances Page 56 of 69 R/CR.A/768/2011 CAV JUDGMENT of the case, was not justified in interfering with the discretion exercised by the trial Court and our answer to the question posed in the earlier part of the judgment is an emphatic - No."
15.3 In the case of Bhupinder Sharma v. State of Himachal Pradesh, reported in (2003) 8 SCC 551, the Apex Court was dealing with a case of gang rape, wherein it observed that no straightjacket formula should be adopted. The Court also held that the appellant had not actually committed the rape, could never be a ground to warrant lesser sentence when the appellant was not only present, but also was waiting for his turn and it upheld the order of the High Court enhancing the sentence from 4 years to minimum prescribed of 10 years by invoking operation of a deeming provision where a member of a group of persons who have acted in furtherance of their common intention per se would attract the minimum sentence. 15.4 In the case of Tulshidas Kanolkar v. State of Goa, reported in (2003) 8 SCC 590, it was a Page 57 of 69 R/CR.A/768/2011 CAV JUDGMENT case of rape on mentally ill woman. It would be beneficial to reproduce the relevant paragraph of the said decision as under :
"8. The omega is said, but a few words are necessary to be said about prescription of sentence in a case where a mentally challenged or deficient woman is the victim. In subsection (2) of Section 376, clause
(f) relates to physical age of a woman under 12 years of age. In such a case sentence higher than that prescribed for one under subsection (1) is provided for. But what happens in a case when the mental age of victim is not even 12 years of age? Such a woman is definitely at more vulnerable situation. A rapist in such a case in addition to physical ravishment exploits her mental nondevelopment and helplessness. The legislature would do well in prescribing higher minimum sentence in a case of this nature. The gravity of offence in such case is more serious than the enumerated categories indicated in subsection (2) of Section 376."
15.5 In the case of State of Uttar Pradesh v. Sanjay Kumar, reported in (2012) 8 SCC 537, the Apex Court was dealing with the principle Page 58 of 69 R/CR.A/768/2011 CAV JUDGMENT of sentencing, sentencing policy, its objective and duty of the Court while sentencing. Here it would be profitable to reproduce relevant paragraphs of the said decision as under :
"21. Sentencing Policy is a way to guide judicial discretion in accomplishing particular sentencing. Generally, two criteria, that is, the seriousness of the crime and the criminal history of the accused, are used to prescribe punishment. By introducing more uniformity and consistency into the sentencing process, the objective of the policy, is to make it easier to predict sentencing outcomes. Sentencing policies are needed to address concerns in relation to unfettered judicial discretion and lack of uniform and equal treatment of similarly situated convicts. The principle of proportionality, as followed in various judgements of this Court, prescribes that, the punishments should reflect the gravity of the offence and also the criminal background of the convict. Thus the graver the offence and the longer the criminal record, the more severe is the punishment to be awarded. By laying emphasis on individualised justice, and shaping the result of the crime to the Page 59 of 69 R/CR.A/768/2011 CAV JUDGMENT circumstances of the offender and the needs of the victim and community, restorative justice eschews uniformity of sentencing. Undue sympathy to impose inadequate sentence would do more harm to the public system to undermine the public confidence in the efficacy of law and society could not long endure under serious threats.
22. Ultimately, it becomes the duty of the Courts to award proper sentence, having regard to the nature of the offence and the manner in which it was executed or committed etc. The Courts should impose a punishment befitting the crime so that the Courts are able to accurately reflect public abhorrence of the crime. It is the nature and gravity of the crime, and not the criminal, which are germane for consideration of appropriate punishment in a criminal trial. Imposition of sentence without considering its effect on social order in many cases may be in reality, a futile exercise.
23. The survival of an orderly society demands the extinction of the life of a person who is proved to be a menace to social order and security. Thus, the Courts for the purpose of deciding just and appropriate sentence to be awarded for an offence, have to delicately balance the Page 60 of 69 R/CR.A/768/2011 CAV JUDGMENT aggravating and mitigating factors and circumstances in which a crime has been committed, in a dispassionate manner. In the absence of any foolproof formula which may provide a basis for reasonable criteria to correctly assess various circumstances germane for the consideration of gravity of crime, discretionary judgment, in relation to the facts of each case, is the only way in which such judgment may be equitably distinguished. The Court has primarily dissected the principles into two different compartments one being, the 'aggravating circumstances' and the other being, the 'mitigating circumstance'. To balance the two is the primary duty of the Court. The principle of proportionality 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 valuable application to the sentencing policy under Indian criminal jurisprudence. While determining the quantum of punishment the court always records sufficient reasons. (Vide: Sevaka Perumal etc. v. State of Tamil Nadu AIR 1991 SC 1463; Ravji v. State of Rajasthan, AIR 1996 SC 787; State of Madhya Pradesh v. Ghanshyam Singh AIR 2003 SC 3191; Dhananjay Chatterjee alias Dhana v. State of W.B. AIR Page 61 of 69 R/CR.A/768/2011 CAV JUDGMENT 2004 SC 3454; Rajendra Pralhadrao Wasnik v. The State of Maharashtra, AIR 2012 SC 1377; and Brajendra Singh v. State of Madhya Pradesh, AIR 2012 SC 1552)."
15.1 In the case of Mohan Anna Chavan v. State of Maharashtra, reported in (2008) 7 SCC 561, the Court has emphasised on the maximum appropriate sentence by considering the object and duty of the Court in this regard. Here the Court by referring to various decisions had emphasised that undue sympathy to impose inadequate sentence would do more harm to the justice system which may undermine the public confidence in the efficacy of law, and society may no long endure under such serious threats. And, therefore, every Court needs to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed. The proportion between the crime and punishment is a goal respected in principle and remains a strong influence in the determination of sentences.
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16. The principles laid down in the aforementioned decisions when applied to the facts of the present case, one fact which hardly requires emphasis here is that this is a case of gang rape on a victim who was mentally challenged and more helpless than a child. It is, in fact, an exploitation of a vulnerable person, where the conduct of the respondents as detailed hereinbefore leaves much to be desired. Lack of uniform and equal treatment in sentencing similarly situated convicts also would jeopardise the sense of justice. Over emphasis on individualised justice, thus, may result into doing more harm to the efficacy of law. The grounds taken into account in this case for similarly situated convicts are not found suitable at all. And endorsing the same would also amount to nonfulfilling the duty to award proper sentence.
At the same time, considering the age of both the convicts, their overall background and circumstances when there are no antecedents, on delicately balancing the proportionality of just Page 63 of 69 R/CR.A/768/2011 CAV JUDGMENT balance sentence, with all aggravating and mitigating circumstances, the request of enhancement in case of respondent No.1Umesh is not found acceptable.
17. The Apex Court in the case of State of Himachal Pradesh v. Gian Chand, reported in (2001) 6 SCC 71, has reiterated the observations made in the case of State of Punjab v. Gurmit Singh and others, reported in (1996) 2 SCC 384. It would be beneficial to reproduce paragraph 17 of the said decision as under :
"17. In State of Punjab Vs. Gurmit Singh & Ors., (1996) 2 SCC 384, one of us, Dr. A.S. Anand, J. (as His Lordship then was) has thus spoken for the court : (SCC p.403, para
21) :
"A murderer destroys the physical body of his victim, a rapist degrades the very soul of the helpless female. The courts, therefore, shoulder a great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity. The courts should examine the Page 64 of 69 R/CR.A/768/2011 CAV JUDGMENT broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case."
The approach adopted by the High Court runs into the teeth of law so stated and hence stands vitiated."
18. From the discussion made hereinabove, it is to be concluded that the order of conviction passed by the trial Court warrants no interference at all.
18.1 Insofar as the sentencing part is concerned, the respondent No.1Umesh Rajubhai Thakor is ordered by the trial Court to undergo rigorous imprisonment for 10 years and a fine of Rs.5,000/ and in default of payment of fine to undergo simple imprisonment for further six months, which again in our opinion, in view of the aforesaid discussion, does not require any interference.
Page 65 of 69 R/CR.A/768/2011 CAV JUDGMENT 18.2 However, so far as the respondent No.2 Pravin Mansukhbhai Bajaniya is concerned, on overall appreciation of the evidence and discussion made hereinabove, the sentence awarded by the trial Court to the respondent NO.2Pravin is hereby required to be enhanced to 10 years' rigorous imprisonment instead of 5 years.
19. For the foregoing reasons, the present appeal is hereby partly allowed qua the respondent No.2Pravin Mansukhbhai Bajaniya. The impugned judgment and order of conviction is confirmed qua both the respondents. The impugned judgment and order of sentence qua the respondent No.2 is hereby modified and enhanced and the respondent No.2 is ordered to undergo rigorous imprisonment for 10 (ten) years, instead of 5 years. The sentence qua fine remains unaltered. 19.1 It is also clarified that if the respondent No.2 has already served the sentence and if he is on bail, his bail bond be cancelled and he shall be taken into custody to serve the Page 66 of 69 R/CR.A/768/2011 CAV JUDGMENT remaining sentence as per present order. If the respondent No.2 is not on bail, a nonbailable warrant be issued by the trial Court against him forthwith and thereafter, he shall be taken into custody to serve the remaining sentence as aforesaid. On such warrant being executed as directed, the report shall be made to the Registry of this Court by the Court concerned. 19.2 So far as present appeal qua the respondent No.1Umeshbhai Rajubhai Thakor is concerned, the same is hereby dismissed and the impugned judgment and order of conviction and sentence qua present respondent No.1 is hereby confirmed.
20. Before parting with the order, it is pertinent to note that no amount of compensation has been awarded to the victim although reiteratively the same is emphasised by the Apex Court. However, as the amount of fine is very less, considering the overall facts and circumstances of the case and the economic Page 67 of 69 R/CR.A/768/2011 CAV JUDGMENT capacity of the convicts, the amount of fine when has not been enhanced; instead the Gujarat State Legal Services Authority is directed to decide the quantum of compensation to be awarded to the victim of the present case under the scheme framed by the State Government in coordination with the Central Government and/or individually, for providing compensation to the victim and pay the same to her within a period of sixty days from today. It is, however, clarified that such amount shall not be less than Rs.1,00,000/ (Rupees One Lakh only).
20.1 It is also being clarified that such amount of compensation be sent directly to the victim of the present case at her place of residence without putting her or her family members in jeopardy of receiving such amount in person. 20.2 Further, if the victim has not recovered 100%, the said amount of compensation be handed over to the guardian of the victim for investing the same in the Fixed Deposit with Page 68 of 69 R/CR.A/768/2011 CAV JUDGMENT any of the Nationalised Banks in the name of the victim in accordance with law.
21. We also place on record the appreciation to the valour shown by the complainantAnjali, NID student, at almost midnight and at whose instance only the crime could be detected and defended so successfully. Such vigilance and commitment towards the duty as a citizen ushers a sense of hope that the country can aspire to be safe in the hands of the future generation.
(ANANT S.DAVE, J.) (MS SONIA GOKANI, J.) Aakar Page 69 of 69