Indian Kanoon - Search engine for Indian Law

WITH CRIMINAL APPEAL NOS. 840 & 839 OF 1997 (Arising out of SLP (Crl.) Nos. 2510 /97 Crl. M.P. No.839/97) and SLP (Crl.) No.1773/96) J U D G M E N T D.P. WADHWA, J.

leave granted Rajendra Jawanmal Gandhi (the accused) was convicted by the Sessions Judge, Satara for offences under Section 376 Indian Penal Code (IPC) and Section 57 of the Bombay Children Act, 1948 for having committed rape on a girl of eight years of age and sentenced to undergo rigorous imprisonment for 7 years and to pay fine of Rs.5,000/- and in default of payment of fine to undergo rigorous imprisonment for six months and for offence under Section 57 of the Bombay Children Act, he was sentenced to undergo rigorous imprisonment for one year and fine of Rs.500/- and in default thereof rigorous imprisonment for one moth. The substantive sentences were ordered to urn concurrently. Maruti car in which the offence of rape was committed was ordered to be forfeited and confiscated to the State. The accused appealed to the Bombay High Court against his conviction and sentence. A Division Bench of the High Court by judgment dated October 4, 1994 upheld the conviction of the accused under Section 57 of the Bombay Children Act and upset the conviction under Section 376 IPC and instead convicted him for an offence under Section 354 IPC and sentenced him to suffer rigorous imprisonment which he had already undergone (which was 33 days in all) and to pay fine of Rs.40,000/-. In default of payment of fine, the accused was sentenced to undergo rigorous imprisonment for three months. It was ordered that our of the fine so realised, a sum of Rs.25,000/- shall be paid to the complaint who was father of the girl. For an offence under Section 57 of the Bombay Children Act, sentence was reduced to imprisonment already undergone and the accused not required to undergo any separate imprisonment for this offence. The Maruti Car was ordered to be returned to the accused and the order of forfeiture and confiscation was set aside.

The matter did not end at that. Nagrik Kirti Samiti, Kolhapur which had been formed was agitated about the acquittal of the accused for an offence under Section 376 IPC. The Convener of the Samiti Mr. P.D. Hankare represented to the State Government to file an appeal to this Court against the acquittal of the accused under Section 376 IPC. In the meantime, the accused had deposited the fine of Rs.40,000/- as ordered by the High Court and our of this amount a sum of Rs.25,000/- has been withdrawn by the father of the girl. Perhaps this was the consideration for the State Government not to file any appeal in the Supreme Court. Since there was no response from the State Government, Mr. P.D. Hankare, Convener of the Nagarik Kirti Samiti, Kolhapur approached this Court. He was granted permission to file special leave petition against the conviction and sentence on the accused by the High Court and as afore mentioned, after notice of this appeal was served upon the State of Maharashtra and the accused, both filed separate appeals in this Court, while the State of Maharashtra filed appeal against the conviction and sentence of the accused by the High Court praying for his conviction under Section 376 IPC and for enhancement of his sentence of minimum of 10 years, the accused filed appeal against his very conviction and sentence under Section 354 IPC and 57 of the Bombay Children Act.

We may now refer to a few cases on Section 376 IPC decided by this Court after the Amending Act of 1983.

In State of Himachal Pradesh vs. Raghubir Singh (1993) 2 SCC 622 (judgment delivered on February 18, 1993) the Supreme Court set aside the acquittal of the respondent by the High Court holding him guilty of an offence under Section 376 IPC for having committed rape on the prosecutrix. Then the Court considered the question of awarding of proper sentence. It noted that the occurrence took place on August, 2, 1982, more than a decade ago and that the Sessions Judge after recording the conviction under Section 376 IPC had sentenced the respondent to suffer RI for five years. The State had not moved the High Court for any enhancement of the sentence. The Court, therefore, felt that the ends of justice would be met if the sentence to be imposed on the respondent was confined to five years RI as was awarded by the Sessions Judge. The Court also then observed as under:

In Madan Gopal Kakkad vs. Naval Dubey and another (1992) 3 SCC 204) the trial court acquitted the respondent for an offence under Section 376 IPC for having committed rape on girl child of 8 years of age. Aggrieved by the judgment of the trial court the State filed an appeal before the High Court challenging the order of acquittal. Father of the child also filed a criminal revision in the High Court questioning the legality of the order of acquittal. It appears one Jay Rao of New York (U.S.A) wrote the report of this incident in a German Magazine called "Der Spiegel" and after visiting Jabalpur sent a petition of grievance addressed to the Chief Justice of India with a copy to the Chief Justice of Madhya Pradesh. On the basis of this petition another criminal revision was also registered. The High Court disposed of the appeal and two criminal revisions by a common judgment, whereby it allowed the State appeal, held respondent guilty of an offence under Section 354 IPC and sentenced him to pay a fine of Rs.3000/- and in default to suffer simple imprisonment for six months. The High Court also directed that a sum of Rs.2,000/- out of the fine amount if realised be paid over a compensation to father of the child who was petitioner in the criminal revision. No separate orders were passed in the two criminal revisions. The State did not prefer any further appeal before this Court. However, the father of the victim girl, who was the complainant and also petitioner in the criminal revision before the High Court, filed criminal appeal in this Court. He felt aggrieved by the judgment of the High Court on the ground that the High Court had erred in finding the respondent guilty of a minor offence under Section 354 IPC when all the necessary ingredients to constitute an offence punishable under Section 376 IPC had been satisfactorily established and that the sentence of mere fine under Section 354 IPC for such a serious offence was grossly inadequate and was not commensurate with the gravity of the offence committed by the respondent. This Court after examining the whole evidence and law on the subject held the respondent guilty of an offence under Section 376 and set aside his conviction under Section 354 IPC. The Court then addressed itself to the quantum of punishment which would meet the ends of justice in the facts and circumstances of the case. The offence in this case was committed in September 1982 and the judgment was delivered in April 1992 by this Court. The Court having regard to the seriousness and gravity of the repugnant crime of rape perpetrated on a girl child of B years of age sentenced the respondent to rigorous imprisonment for a period of seven years and to pay a fine of Rs.25,000/- and in default to suffer rigorous imprisonment for 1-1/2 years. It was further directed that the amount of fine of Rs.25,000/- if realised shall be paid to the victim girl who was now a major.