Rajasthan High Court - Jodhpur
Ummeda Ram vs State on 17 December, 2018
Bench: Sandeep Mehta, P.K. Lohra
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Criminal Appeal No. 972/2015
Ummeda Ram S/o Mangla Ram, Age about 21 Years, R/o Sada
Jhud, Police Station- Sindhari, District - Barmer (Raj.).
(Behind the Bar since 8-1-2012 till date and presently lodged in
Central Jail, Jodhpur).
----Appellant
Versus
State of Rajasthan through P.P.
----Respondent
For Appellant(s) : Mr. H.S. Sandhu.
For Respondent(s) : Mr. J.P.S. Choudhary, PP.
HON'BLE MR. JUSTICE SANDEEP MEHTA
HON'BLE MR. JUSTICE P.K. LOHRA
Judgment
Date of Judgment:- 17/12/2018
(BY THE COURT: PER HON'BLE MEHTA, J.)
The instant appeal under Section 374(2) Cr.P.C. has been preferred by the appellant convict Ummeda Ram for assailing the Judgment dated 31.08.2015 passed by the learned Special Judge, SC & ST (Prevention of Atrocities) Act Cases, Barmer in Sessions Case No.24/2015 (36/2013, 09/2012) whereby, the accused was convicted for the offence under Section 376(2)(F) and sentenced to Life Imprisonment.
Facts in brief are that the complainant Smt. 'S' lodged a written report (Ex.P/7) at the Police Station Sindhari, District Barmer on 06.01.2012 alleging inter alia that on the same (2 of 20) [CRLA-972/2015] afternoon, she alongwith her daughter Mst. 'S' (the victim), aged about 9 years, had gone to the nearby fields for collecting firewood. While searching for pieces of wood, the child went to the field of Jagnaram Dewasi on her own. At about 03.30 pm., she heard the fervent cries of her daughter whereupon, she rushed towards Jagnaram's field and saw that Ummeda Ram had thrown the child down on the ground and was subjecting her to forcible sexual assault. She raised a hue and cry on which, her husband's nephew Bheraram (Jethuta) came around and on seeing him, Ummeda Ram ran away towards the village Sada. She and Bhera Ram looked at the child and found that she was profusely bleeding from her nether region. Her shorts were open and soaked with blood. The child was also brought to the Police Station. On the basis of this complaint, an FIR No.4/2012 was registered at the Police Station Sindhari, District Barmer for the offences under Section 376(2)(F) of the IPC and Section 3(2)(v) of the SC/ST (P.A.) Act. The child was subjected to medical examination by a Medical Board constituted at the Government Hospital, Barmer. As per the medical examination report (Ex.P/1), the height of the child was 128 cms., her weight was 21 Kgs. The secondary sexual features had not appeared. She was feeling difficulty in walking. She was having abrasions on the labia majora soiling and blood stains were present on her thighs and external genitals. The vaginal region was having a large abrasion with bleeding. Her hymen was torn. Stitches had to be put for repairing the injuries. The Medical Board reserved its opinion regarding forceful intercourse for receipt of FSL Examination of the various swabs, etc. seized during medical examination. The accused appellant was arrested and was got medically examined. The Medical Officer (3 of 20) [CRLA-972/2015] opined that the accused was competent to indulge in sexual intercourse. After investigation, the investigating officer filed a charge-sheet against the accused appellant for the offences under Sections 376(2)(F) IPC and Sections 3(2)(v) of the SC/ST Act in the Court of Judicial Magistrate, Balotra. Since the offence under the SC/ST Act was involved, the case was committed to the Court of Special Judge, SC/ST Act, Barmer. Charges were framed against the appellant for the offences alleged above. He pleaded not guilty and claimed trial. The prosecution examined as many as 19 witnesses in support of its case. Upon being questioned under Section 313 Cr.P.C., the accused denied the prosecution allegations and claimed to be innocent. At the conclusion of trial, the learned Trial Judge proceeded to acquit the accused appellant from the offence under Section 3(2)(v) of the SC/ST Act but convicted and sentenced him to life imprisonment for the offence under Section 376(2)(F) of the IPC. Hence this appeal.
Shri H.S. Sandhu, learned counsel representing the appellant advanced the following contentions to assail the impugned judgment:-
(i) that there are grave contradictions in the statements of the victim regarding the manner in which and the place at which the incident happened.
(ii) presence of the first informant at the scene of occurrence is doubtful.
(iii) the victim in her cross-examination could not state about identity of the assailant with certainty.
(iv) she also admitted that the appellant did not subject her to forcible intercourse in the field of Jagnaram.
(4 of 20) [CRLA-972/2015] Drawing the Court's attention to the cross-examination of the victim Mst. 'S' examined as PW-5 at the trial, Shri Sandhu urged that the child admitted in her cross-examination that the accused appellant did not insert his private parts into her private parts and thus, it has to be assumed that the victim was not subjected to sexual assault. He further urged that the victim admitted that her Bhabhi (sister-in-law) was present in the field with her but thereafter, in order to shomehow establish the presence of her mother, create her to be an eye-witness and corroborate the FIR, she tried to concoct a story that she used to address her mother as Bhabhi. He thus urged that presence of the first informant at the scene of occurrence is doubtful and the evidence of the victim does not get sufficient corroboration and hence, as per him, it would be totally unsafe to rely upon her sole testimony so as to uphold the guilt of the appellant. On these grounds, he urged that conviction of the appellant as recorded by the trial court is bad on facts and should be set aside. In the alternative, he contended that the appellant was a 22 years old boy when the incident happened. He has remained in custody for nearly 8 years and as such, the sentence awarded to the appellant may be reduced to the period already undergone by him. In support of this contention, Shri Sandhu relied upon the following judgments:
(i) Bhavanbhai Bhayabhai Panella vs. State of Gujarat, reported in 2015 Cr.L.R. (SC) 259;
(ii) Bavo @ Manubhai Ambalal Thakore vs. State of Gujarat, reported in 2012 Cr.L.R. (SC) 249;
(iii) Chanda Lal @ Harchanda vs. State of Rajasthan, reported in 2015(1) Cr.L.R. (Raj.) 235;
(5 of 20) [CRLA-972/2015]
(iv) Rajendra Kumar @ Raju vs. State of Rajasthan, reported in 2015(3) Cr.L.R. (Raj.) 1130;
(v) Ms. S. vs. Sunil Kumar & Anr., reported in 2015 Cr.L.R. (SC) 541;
(vi) Madan Lal vs. State of Rajasthan, reported in 2011(2) Cr.L.R. (Raj.) 1072;
(vii) Padma vs. State of Rajasthan, reported in 2013(3) Cr.L.R. (Raj.) reported in 2013(3) Cr.L.R. (Raj.) 1588
(viii) Sita Ram vs. State of Rajasthan, reported in 2014 (1) Cr.L.R. (Raj.) 31; and
(ix) Chatra Vs. State of Rajasthan, reported in 2013(4) Cr.L.R. (Raj.) 1846, and urged that Hon'ble the Supreme Court in identical circumstances, reduced the sentence awarded to the accused from the life imprisonment to 10 years or less and thus, similar lenient consideration on the aspect of sentence should be given to the appellant as well.
Learned Public Prosecutor, on the other hand, vehemently and fervently opposed the submissions advanced by the appellant's counsel. He contended that the appellant has been held guilty for the ghastly offence of rape with a minor child aged about 9 years. During course of being brutalized by the appellant, the child received large number of injuries on her private parts. Her evidence is clinching and gets corroboration from the evidence of her mother, the first informant and the medical evidence and there is no reason to doubt the same. As per learned Public Prosecutor, the offence is so gruesome and heinous in nature that the appeal should be dismissed in toto.
(6 of 20) [CRLA-972/2015]
We have given our thoughtful consideration to the
submissions advanced at bar and have gone through the material available on record. We have carefully and minutely sifted and re- appreciated the evidence available on record.
The incident took place on 06.01.2012 at about 03.30 pm. Smt. 'S', mother of the victim lodged the written report at the Police Station Sindhari on the very same day at 09.10 pm. Thus, there is no delay whatsoever in lodging of the FIR. As per the school certificate (Ex.P./2), the date of birth of the victim was 10.07.2005. Thus, considering the relevant documentary and medical evidence, the age of the victim was definitely below 9 years. Her physical attributes noticed by the Medical Board indicate that her height was 128 cms. and her weight was 21 Kgs. which factors are sufficient to satisfy the Court that the age of the child must have been between 7 to 9 years. Upon being examined at the trial as PW-5, the victim gave firm and unflinching testimony to the effect that while she was collecting firewood in the fields, the appellant herein, accosted her; asked her to open her shorts and when she refused, the accused forcibly pulled down her shorts and inserted his finger in her private parts. Thereafter, the accused threw her down on the ground and forcibly penetrated her vagina with his penis. She cried out in pain and started bleeding from her nether region. Her mother heard her cries and came around. By that time, she had virtually lost her senses. She was taken to the police station Sindhari where the report was lodged. In cross examination, the flimsy suggestions which the defence gave to the victim were regarding the manner in which the victim used to call her mother and she categorically stated that she used to address her as Bhabhi. The victim was given very (7 of 20) [CRLA-972/2015] vague and misleading suggestion that she was not assaulted in the field of Jaga. To this suggestion, she replied that she was in Jagnaram's field when the accused ravished her sexually. Thus, no significant contradiction is noticeable in the statement of the victim regarding the allegation of forcible sexual assault attributed to the appellant herein so as to doubt her testimony. The minor contradictions elicited in the cross-examination regarding the fact whether the incident took place in the field of Jagaram or Jagnaram is far too trivial so as to carry much significance. She is a child witness and thus, minor contradictions upon vague and misleading questions put to her during cross-examination have to be ignored. As per the site inspection plan (Ex.P/6), the place of incident is the field of Jagna Ram and thus, the statement of the victim finds fully corroboration on this aspect. PW-6 Mst. 'S' (mother of the victim) and PW-16 Bheraram (her uncle) gave clinching and convincing testimony corroborating the statement of the victim. No significant shortcoming and contradictions were brought out in the cross-examination conducted from the witnesses Smt. 'S' PW-6 the first informant and PW-16 Bhera Ram. We may hasten to add here that the statement of the child victim itself inspires confidence and does not require any corroboration but even if corroboration is needed, statement of these two witnesses and the medical evidence are more than sufficient to provide the same. PW-15 Dr. Seema, being the Medical Officer and part of the Medical Board who medically examined the victim categorically stated that upon examining the child aged 9 years, they noticed numerous injuries on her nether regions. The victim was writhing in pain upon touch. These circumstances as noticed by the Medical Board coupled with the (8 of 20) [CRLA-972/2015] testimony of the victim Mst. 'S' (PW-5), PW-6 the first informant (her mother) and PW-16 Bheraram (her cousin) are more than enough to satisfy the Court beyond all manner of doubt that the victim was subjected to a brutal and gruesome sexual assault by none other than the appellant.
Shri Sandhu was put a pertinent query to point out a single circumstance from the entire record which could satisfy the Court that there was any cause for the minor victim or her family members so as to falsely implicate the accused appellant. To this query, Shri Sandhu replied in negative. Otherwise also, we have minutely examined the cross-examination conducted from these three material prosecution witnesses thread bare and find that there was no suggestion of animosity or ill-will between the parties which could have led to the false implication of the appellant for this grave offence. It cannot be gainsaid that a prosecution for rape carries with it, the consequence of grave risk that the reputation of the victim and her family would be tarnished in the society and thus, it cannot even be conceived that the complainant would take the risk of putting her child's reputation at stake by filing a false case of rape.
Now coming to the aspect of the sentence awarded to the appellant in reference to the precedents relied upon by Shri Sandhu. In the case of Bhavanbhai Bhayabhai Panella (supra), Hon'ble the Supreme Court considered the peculiar facts of that case and more particularly, the circumstance that the prosecutrix stated in her cross-examination that the matter had been compromised and thereafter, went on to reduce the sentence awarded to the accused from life imprisonment to 10 years. No such circumstance exists in the case at hand because there is not (9 of 20) [CRLA-972/2015] even a vague suggestion of defence that the case stands compromised. Thus, the said judgment is of no aid to the accused on the aspect of reduction of sentence.
In the case of Bavo @ Manubhai Ambalal Thakore (supra), Hon'ble the Supreme Court considered the aspect that the accused was 18-19 years of age on the date of incident which happened more than 10 years ago and in those peculiar facts, the sentence of life awarded to the accused was reduced to 10 years R.I. However, we are not in the least convinced that facts of the said case are akin to the case at hand and thus, the ratio of the said judgment does not apply to the case at hand. Otherwise also, both these Judgments do not lay down any precedent as Hon'ble the Supreme Court reduced the sentence of life awarded to the convicts in the peculiar facts of those cases.
In the case of Chanda Lal @ Harchanda (supra), the Division Bench of this Court, considered the aspect that the appellant was the sole bread-earner of the family and thereafter, following the reasoning in the case of Bavo @ Manubhai Ambalal Thakore (supra), reduced the sentence awarded to the appellant therein from life imprisonment to imprisonment of 10 years.
The other judgments rendered by the Division Bench of this Court in the cases of Chanda Lal @ Harchanda (supra), Rajendra Kumar (supra), etc. (relied upon by Shri Sandhu) were passed on the basis of above two Supreme Court Judgments which, in our opinion, do not lay down any ratio decidendi.
We are least convinced with the submission advanced by Shri Sandhu that the appellant being a poor illiterate man deserves a lenient consideration on the aspect of sentence. We (10 of 20) [CRLA-972/2015] may state here that the Supreme Court Judgments which have been relied upon by Shri Sandhu do not lay down any ratio, precedent or a concrete proposition to the effect that in every case of child rape, the sentence awarded to the accused should be reduced from imprisonment of life to that of 10 years.
Our view is fortified by the following observations made by a three Judges Bench of Hon'ble the Supreme Court in the case of State of Karnataka vs. Krishnappa reported in AIR 2000 SC 1470 wherein, the Hon'ble Supreme Court observed as below:
"11. A perusal of the above provision shows that the legislative mandate is to impose a sentence, for the offence of rape on a girl under 12 years of age, for a term which shall not be less than 10 years, but it may extend to life and also to fine. The proviso to Section 376(2) IPC, of course, lays down that the Court may, for adequate and special reasons to be mentioned in the judgment, impose sentence of imprisonment of either description for a term of less than 10 years. Thus, the normal sentence in a case where rape is committed on a child below 12 years of age, is not less than 10 years R.I. though in exceptional cases for special and adequate reasons" sentence of less than 10 years R.I. can also be awarded. It is a fundamental rule of construction that a proviso must be considered with relation to the principle matter to which it stands as a proviso particularly in such like penal provisions. The Courts are obliged to respect the legislative mandate in the matter of awarding of sentence in all such cases. Recourse to the proviso can be had only for"
special and adequate reasons" and not in a casual manner. Whether there exist any "special and adequate reason"
would depend upon a variety of factors and the peculiar facts and circumstances of each case. No hard and fast rule can be Laid down in that behalf of universal application.
12. The approach of the High Court in this case, to say the least, was most casual and inappropriate. There are no good reasons given by the High Court to reduce the sentence let alone "special or adequate reasons". The High Court exhibited lack of sensitivity towards the victim of rape and the society by reducing the substantive sentence in the established facts and circumstances of the case. The Courts are expected to properly operate the sentencing system and to impose such sentence for a proved offence, which may serve as a deterrent for the commissions of like offences by others.
(11 of 20) [CRLA-972/2015]
13. In State of A.P. v. Bodem Sundara Rao : AIR 1996 SC 530, while dealing with a case of reduction of sentence from 10 years R.I. to 4 years R.I. by the High Court in the case of rape of a girl aged between 13 and 14 years it was observed:
In recent years, we have noticed that crime against woman are on the rise. These crimes are an affront to the human dignity of the society. Imposition of grossly inadequate sentence and particularly against the mandate of the Legislature not only is an injustice to the victim of the crime in particular and the society as a whole in general but also at times encourages a criminal. The Courts have an obligation while awarding punishment to impose appropriate punishment so as to respond to the society's cry for justice against such criminals. Public abhorrence of the crime needs a reflection through the Courts verdict in the measure of punishment. The Courts must not only keep in view the right of the criminal but also the rights of the victim of crime and the society at large while considering imposition of the appropriate punishment. The heinous crime of committing rape on a helpless 13/14 year old girl shakes our judicial conciseness. The offence was inhumane.
(Emphasis supplied).
The sentence was accordingly enhanced to 7 years R.I. in the said case.
14. Sexual violence apart from being a dehumanising act is an unlawful intrusion of the right to 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, it leaves behind a traumatic experience.
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. Dealing with the offence of rape and its traumatic effect on a rape victim, this Court in State of Punjab v. Gurmit Singh : 1996 Cri LJ 1728, observed:
Of late, crime against women in general and rape in particular is on the increase. It is an irony that while we are celebrating woman's right in all spheres, we show little or no concern for her honour. It is a sad reflection on the attitude of indifference of the society towards the violation of human dignity of the victims of sex crimes. We must remember that a rapist not only violates the victim's privacy and personal integrity, but inevitably causes serious psychological as well as physical harm in the process. Rape is not merely a physical assault- it is often destructive of the whole personality of the victim. A murderer destroys the (12 of 20) [CRLA-972/2015] physical body of his victim, a rapist degrades the very soul of the helpless female. The Courts, therefore, shoulder a greater responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity.
15. A socially sensitized 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 provisos.
16 . In the instant case, the Trial Court gave sufficient and cogent reasons for imposing the sentence of 10 years R.I. for the offence under Section 376 IPC on the respondent. Those reasons have impressed us. The Trial Court was rightly influenced by the fact that the respondent was a married man of 49 years of age having his own children and the victim of his sexual lust was an innocent helpless girl of 7/8 years of age. The medical evidence provided by PW-6, Dr. Shalini Devi exhibits the cruel nature of the act and the extent of pain and suffering which the victim might have undergone on her genitalia as a result of forcible coitus. The Trial Court had, therefore, opined that because of the cruel nature of the act, the accused was not entitled to any leniency.
17. 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 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 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) IPC 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 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.
(13 of 20) [CRLA-972/2015] 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 circumstance 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 crimes 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 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."
The ratio laid down in the case of State of Karnataka vs. Krishnappa was followed and reiterated in the case of Shyam Narayn vs. The State of NCT of Delhi, reported in AIR 2013 SC 2209 wherein, Hon'ble the Supreme Court went on to hold that an offender cannot be allowed to be treated with leniency solely on the basis of discretion vested in the Court. The real requisite is to weigh the circumstances in which the crime has been committed and other concomitant factors. In Shyam Narayan's case, wherein the accused who was alleged to have sexually assaulted the victim, a young girl aged 8 years, was sentenced to life imprisonment. While issuing notice, the Court restricted the scope of the appeal on the quantum of sentence and after analysing in detail, various earlier pronouncements on the (14 of 20) [CRLA-972/2015] aspect of sentencing in cases of child rape, Hon'ble the Supreme Court held as below:-
"10. Presently, we shall proceed to deal with the justification of the sentence. Learned Counsel for the Appellant, would submit that though Section 376(2) provides that sentence can be rigorous imprisonment for life, yet as a minimum of sentence of ten years is stipulated, this Court should reduce the punishment to ten years of rigorous imprisonment. It is urged by him that the Appellant is a father of four children and their lives would be ruined if the sentence of imprisonment for life is affirmed. Mr. Paras Kuhad, and Mr. B.V. Balram Dass, counsel for the State, submitted that the crime being heinous, the sentence imposed on the accused is absolutely justified and does not warrant interference. It is also canvassed by them that reduction of sentence in such a case would be an anathema to the concept of just punishment.
11. Primarily it is to be borne in mind that sentencing for any offence has a social goal. Sentence is to be imposed regard being had to the nature of the offence and the manner in which the offence has been committed. The fundamental purpose of imposition of sentence is based on the principle that the accused must realise that the crime committed by him has not only created a dent in his life but also a concavity in the social fabric. The purpose of just punishment is designed so that the individuals in the society which ultimately constitute the collective do not suffer time and again for such crimes. It serves as a deterrent. True it is, on certain occasions, opportunities may be granted to the convict for reforming himself but it is equally true that the principle of proportionality between an offence committed and the penalty imposed are to be kept in view. While carrying out this complex exercise, it is obligatory on the part of the Court to see the impact of the offence on the society as a whole and its ramifications on the immediate collective as well as its repercussions on the victim.
12. In this context, we may refer with profit to the pronouncement in Jameel v.State of Uttar Pradesh :
(2010) 12 SCC 532, wherein this Court, speaking about the concept of sentence, has laid down that 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."
13 . In Shailesh Jasvantbhai and Anr. v. State of Gujarat and Ors. : (2006) 2 SCC 359, the Court has observed thus:
(15 of 20) [CRLA-972/2015] Friedman in his Law in Changing Society stated that:
"State of criminal law continues to be-as it should be-a decisive reflection of social consciousness of society."
Therefore, in operating the sentencing system, law should adopt the corrective machinery or deterrence based on factual matrix. By deft modulation, sentencing process be stern 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. 14 . In State of M.P. v. Babulal : AIR 2008 SC 582, two learned Judges, while delineating about the adequacy of sentence, have expressed thus:
19. Punishment is the sanction imposed on the offender for the infringement of law committed by him.
Once a person is tried for commission of an offence and found guilty by a competent court, it is the duty of the court to impose on him such sentence as is prescribed by law. The award of sentence is consequential on and incidental to conviction. The law does not envisage a person being convicted for an offence without a sentence being imposed therefore.
20. The object of punishment has been succinctly stated in Halsbury's Laws of England, (4th Edition: Vol. II: para 482) thus:
The aims of punishment are now considered to be retribution, justice, deterrence, reformation and protection and modern sentencing policy reflects a combination of several or all of these aims. The retributive element is intended to show public revulsion to the offence and to punish the offender for his wrong conduct. The concept of justice as an aim of punishment means both that the punishment should fit the offence and also that like offences should receive similar punishments. An increasingly important aspect of punishment is deterrence and sentences are aimed at deterring not only the actual offender from further offences but also potential offenders from breaking the law. The importance of reformation of the offender is shown by the growing emphasis laid upon it by much modern legislation, but judicial opinion towards this particular aim is varied and rehabilitation will not usually be accorded precedence over deterrence. The main aim of punishment in judicial thought, however, is still the protection of society and the (16 of 20) [CRLA-972/2015] other objects frequently receive only secondary consideration when sentences are being decided.
(Emphasis supplied) 15 . In Gopal Singh v. State of Uttarakhand : 2013 (2) SCALE 533, while dealing with the philosophy of just punishment which is the collective cry of the society, a two-
Judge Bench has stated that just punishment would be dependent on the facts of the case and rationalised judicial discretion. Neither the personal perception of a Judge nor self-adhered moralistic vision nor hypothetical apprehensions should be allowed to have any play. For every offence, a drastic measure cannot be thought of. Similarly, an offender cannot be allowed to be treated with leniency solely on the ground of discretion vested in a Court. The real requisite is to weigh the circumstances in which the crime has been committed and other concomitant factors.
16. The aforesaid authorities deal with sentencing in general. As is seen, various concepts, namely, gravity of the offence, manner of its execution, impact on the society, repercussions on the victim and proportionality of punishment have been emphasized upon. In the case at hand, we are concerned with the justification of life imprisonment in a case of rape committed on an eight year old girl, helpless and vulnerable and, in a way, hapless. The victim was both physically and psychologically vulnerable. It is worthy to note that any kind of sexual assault has always been viewed with seriousness and sensitivity by this Court.
17. I n Madan Gopal Kakkad v. Naval Dubey and Anr. :
(1992) 3 SCC 204, it has been observed as follows:
... though all sexual assaults on female children are not reported and do not come to light yet there is an alarming and shocking increase of sexual offences committed on children. This is due to the reasons that children are ignorant of the act of rape and are not able to offer resistance and become easy prey for lusty brutes who display the unscrupulous, deceitful and insidious art of luring female children and young girls. Therefore, such offenders who are menace to the civilized society should be mercilessly and inexorably punished in the severest terms.
18. In State of Andhra Pradesh v. Bodem Sundra Rao :
AIR 1996 SC 530, this Court noticed that crimes against women are on the rise and such crimes are affront to the human dignity of the society and, therefore, imposition of inadequate sentence is injustice to the victim of the crime in particular and the society in general. After so observing, the learned Judges had to say this:
"The Courts have an obligation while awarding punishment to impose appropriate punishment so as to (17 of 20) [CRLA-972/2015] respond to the society's crime for justice against such criminals. Public abhorrence of the crime needs a reflection through the Court's verdict in the measure of punishment. The Courts must not only keep in view the rights of the criminal but also the rights of the victim of crime and the society at large while considering imposition of the appropriate punishment.
19 . In State of Punjab v. Gurmit Singh and Ors. : AIR 1996 SC 1393, this Court stated with anguish that crime against women in general and rape in particular is on the increase. The learned Judges proceeded further to state that it is an irony that while we are celebrating women's rights in all spheres, we show little or no concern for her honour. It is a sad reflection of the attitude of indifference of the society towards the violation of human dignity of the victims of sex crimes. Thereafter, the Court observed the effect of rape on a victim with anguish:
We must remember that a rapist not only violates the victim's privacy and personal integrity, but inevitably causes serious psychological as well as physical harm in the process. Rape is not merely a physical assault-it is often destructive of the whole personality of the victim. A murderer destroys the physical body of his victim, a rapist degrades the very soul of the helpless female.
20. In State of Karnataka v. Krishnappa : (2000) 4 SCC 75, a three-Judge Bench opined that the courts must hear the loud cry for justice by the society in cases of the heinous crime of rape on innocent helpless girls of tender years and respond by imposition of proper sentence. Public abhorrence of the crime needs reflection through imposition of appropriate sentence by the court. It was further observed that to show mercy in the case of such a heinous crime would be travesty of justice and the plea for leniency is wholly misplaced.
21. In Jugendra Singh v. State of Uttar Pradesh :
(2012) 6 SCC 297, while dwelling upon the gravity of the crime of rape, this Court had expressed thus:
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 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 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 (18 of 20) [CRLA-972/2015] is compelled to suffer as it creates an incurable dent in the fabric of the social milieu.
22. Keeping in view the aforesaid enunciation of law, the obtaining factual matrix, the brutality reflected in the commission of crime, the response expected from the courts by the society and the rampant uninhibited exposure of the bestial nature of pervert minds, we are required to address whether the rigorous punishment for life imposed on the Appellant is excessive or deserves to be modified. The learned Counsel for the Appellant would submit that the Appellant has four children and if the sentence is maintained, not only his life but also the life of his children would be ruined. The other ground that is urged is the background of impecuniosity. In essence, leniency is sought on the base of aforesaid mitigating factors. It is seemly to note that the legislature, while prescribing a minimum sentence for a term which shall not be less than ten years, has also provided that the sentence may be extended upto life. The legislature, in its wisdom, has left it to the discretion of the Court. Almost for the last three decades, this Court has been expressing its agony and distress pertaining to the increased rate of crimes against women. The eight year old girl, who was supposed to spend time in cheerfulness, was dealt with animal passion and her dignity and purity of physical frame was shattered. The plight of the child and the shock suffered by her can be well visualised. The torment on the child has the potentiality to corrode the poise and equanimity of any civilized society. The age old wise saying "child is a gift of the providence"
enters into the realm of absurdity. The young girl, with efflux of time, would grow with traumatic experience, an unforgettable shame. She shall always be haunted by the memory replete with heavy crush of disaster constantly echoing the chill air of the past forcing her to a state of nightmarish melancholia. She may not be able to assert the honour of a woman for no fault of hers.
Respect for reputation of women in the society shows the basic civility of a civilised society. No member of society can afford to conceive the idea that he can create a hollow in the honour of a woman. Such thinking is not only lamentable but also deplorable. It would not be an exaggeration to say that the thought of sullying the physical frame of a woman is the demolition of the accepted civilized norm, i.e., "physical morality". In such a sphere, impetuosity has no room. The youthful excitement has no place. It should be paramount in everyone's mind that, on one hand, the society as a whole cannot preach from the pulpit about social, economic and political equality of the sexes and, on the other, some pervert members of the same society dehumanize the woman by attacking her body and ruining her chastity. It is an assault on the individuality and inherent dignity of a woman with the mindset that she should be elegantly servile to men.
(19 of 20) [CRLA-972/2015] 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 committed. We have emphasised on the manner because, in the present case, the victim is an eight year old girl who possibly would be deprived of the dreams of "Spring of Life" and might be psychologically compelled to remain in the "Torment of Winter". When she suffers, the collective at large also suffers. Such a singular crime creates an atmosphere of fear which is historically abhorred by the society. It demands just punishment from the court and to such a demand, the courts of law are bound to respond within legal parameters. It is a demand for justice and the award of punishment has to be in consonance with the legislative command and the discretion vested in the court. The mitigating factors put forth by the learned Counsel for the Appellant are meant to invite mercy but we are disposed to think that the factual matrix cannot allow the rainbow of mercy to magistrate. Our judicial discretion impels us to maintain the sentence of rigorous imprisonment for life and, hence, we sustain the judgment of conviction and the order of sentence passed by the High Court.
23. Ex consequenti, the appeal, being sans merit, stands dismissed."
We are of the firm opinion that Hon'ble the Supreme Court has in the above case, thrashed out in detail all the aspects to be considered while awarding sentence in cases of child rape. A sentence of life imprisonment to an accused indicted for the perverted offence of child rape, has been treated to be a norm rather than an exception. Hon'ble the Supreme Court observed that the eight year old girl, who was supposed to spend time in cheerfulness, was dealt with animal passion and her dignity and purity of physical frame was shattered. She may not be able to assert the honour of a woman for no fault of hers. Such a singular crime creates an atmosphere of fear which is historically abhorred by the society. It demands just punishment from the courts and to such a demand, the courts of law are bound to respond within legal parameters. After observing thus, Hon'ble the Supreme (20 of 20) [CRLA-972/2015] Court went on to affirm the sentence of life imprisonment imposed upon the accused.
The facts of the case at hand are absolutely identical. The victim in the present case was an innocent child of age between 7 to 9 years. She was collecting firewood in the fields with her mother when accused, driven by his perverted lustful carnal desires, subjected her to a reprehensible sexual assault thereby brutalizing her and leaving her seriously injured and traumatized. It is only because of timely arrival of the mother at the scene of the occurrence that the child's life could be saved.
In this background, this Court is of the firm opinion that the appellant's heinous act deserves nothing less than life imprisonment as sentence and he does not deserve any leniency on this aspect.
The impugned judgment dated 31.08.2015 passed by the learned Special Judge, SC & ST (Prevention of Atrocities) Cases, Barmer does not suffer from any illegality, infirmity or shortcoming whatsoever warranting interference by this Court in its appellate jurisdiction.
In view of the discussion made herein above, we find no merit in this appeal which is hereby dismissed as such.
(P.K. LOHRA),J (SANDEEP MEHTA),J
Tikam Daiya/-
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