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Himachal Pradesh High Court · body

2003 DIGILAW 137 (HP)

STATE OF H. P. v. RAMESH CHAND ALIAS RAWAN

2003-06-02

K.C.SOOD, M.R.VERMA

body2003
JUDGMENT M.R. Verma, J. - This appeal has been preferred by the State of Himachal Pradesh under Section 377 of the Code of Criminal Procedure (hereafter referred to as the Code) for enhancement of sentence awarded to the respondent/accused (hereinafter referred t as the accused) in Sessions Trial No. 25 of 2000 for commission o an offence under Section 376(2) (f) of the Indian Penal Code. 2. Case of the prosecution is that the prosecutrix (PW-5) a resident of village Tihri aged about 10 years was studying in 6th standard in Government Senior Secondary School, Galore in the year 2000. On May 9, 2000, she had gone to the School which closed at 2 p.m. Thereafter the prosecutrix left for her house which is at a distance of about three kilometers from the said School. The prosecutrix was accompanied by her class mate Kumari Suman of village Daswin which falls in between Tihri and Galore. When they reached village Daswin, Kumari Suman went to her house and the prosecutrix continued her journey to her house in village Tihri. When she had covered a little distance from village Daswin a Bus bound for Plasi arrived there. The accused alighted from the Bus. When the accused law the prosecutrix, he lifted her, gagged her mouth so that she could not cry and took her to the Nallah where he subjected her to rape. After commission of the crime the accused went away leaving the prosecutrix on the spot horrified and bleeding. The prosecutrix, however, managed to come to the road naked .and crying for help and safety. At that time Jeep driven by Jaswant Singh (PW-6) came there. He noticed the prosecutrix who was naked and coming towards the road from the Nallah through the fields. He came forward to help the prosecutrix. He sent a labourer working on the road to brig the clothes of the prosecutrix from the Nallah and helped her to wear them and took her to her house and handed over the prosecutrix to her mother. The prosecutrix narrated the occurrence to her mother. On hearing of the occurrence many villagers came to the house of the prosecutrix. Her father at that time was not present in the house as he was working as a labourer in Chandigarh. The prosecutrix narrated the occurrence to her mother. On hearing of the occurrence many villagers came to the house of the prosecutrix. Her father at that time was not present in the house as he was working as a labourer in Chandigarh. The village people took the prosecutrix to Community Health Centre, Barsar from where she was referred to Zonal Hospital, Hamirpur. The prosecutrix was then taken to Zonal Hospital, Hamirpur where she was admitted for treatment. 3. In the meanwhile, Brahma Dass (PW-7) gave telephonic information about the occurrence to Police Station, Barsar vide DDR No. 17 Ext. PW-18/A. On receipt of this information S.I. Madan Kant (PW-18) S.H.O. Police Station, Barsar alongwith a few other police officials proceeded to Community Health Centre, Barsar where Suman Devi (PW-4) mother of the prosecutrix made a statement under Section 154 Cr.P.C. Ext. PW-4/A about the occurrence on the basis of which a formal F.I.R. Ext. PW-18/B was recorded at Police Station, Barsar and the investigation followed. 4. The prosecutrix was got medically examined on 9.5.2000 at 8.15 p.m. and the M.L.C. about her medical examination conducted by Dr. Suman Sharma (PW-1) is Ext. PW-1/A. At the time of medical examination of the prosecutrix following injuries were found on her person: 1. Two reddish contusions on the right cheek of the size of 3 cm. x 2 cm and 2 cm x 1 cm size. 2. Reddish abrasion of the dimension of 1/4 cm x 1/4 cm below the right eye. It was placed on medial side of injury No. 1. 3. A sharp cut (incized wound) on anterior aspect of the left index finger at the terminal interphlygean joint. There was clotted blood on this wound. The cut was skin deep. 4. Multiple reddish abrasions of different sizes on the whole of the back. 5. The legs, thighs and perineum were soiled with blood. The patient had bled a lot. 6. The hymen was found torn. Blood was coming out of the injury which appeared to be a fresh injury. 7. The forchette was found torn. It was having II degree. Central perennial tear which was extending to anterior part of anal sphincter. 5. As per the medical opinion given by PW-1 the occurrence of sexual assault on the prosecutrix could not be ruled out. Blood was coming out of the injury which appeared to be a fresh injury. 7. The forchette was found torn. It was having II degree. Central perennial tear which was extending to anterior part of anal sphincter. 5. As per the medical opinion given by PW-1 the occurrence of sexual assault on the prosecutrix could not be ruled out. The clothes of the prosecutrix and two vaginal smear slides were taken by PW-1 and after packing and sealing, were handed over to the police for the purpose of chemical examination. The police also took in possession blood stained leaves and stones from the place of occurrence vide Memo Ext. PW-6/A. One bundle of Bin was also taken in possession from the place of occurrence vide Memo Ext. PW-6/B. The accused was arrested and on the request of the police was medically examined by Dr. Rakesh Sharma (PW-2). MLC about the medical examination of the accused issued by PW-2 is Ext, PW-2/A. At the time of the medical examination of the accused he was found to have consumed alcohol. As per the medical opinion, the accused was found capable of performing sexual intercourse. At the time of medical examination the wearing apparels of the accused were also taken in possession by PW-2 and after sealing the same were handed over to the police. 6. While in police custody the accused made a disclosure statement Ex. PW-9/A under Section 27 of the Evidence Act about the shirt he was wearing on 9.5.2000 which he had washed and had kept at a place below the Bank in Galore Bazaar. On the basis of the said statement a shirt was recovered by the police at the instance of the accused and was taken in possession vide Memo Ext. PW-9/B. 7. During the course of investigation, prosecutrix identified the accused as the culprit vide Memo Ext. PW-3/A. Certificate Ext. PW-10/A regarding date of birth of the prosecutrix was obtained from Amar Nath Verma (PW-10) Principal, Government Senior Secondary School, Galore and birth certificate of the prosecutrix Ext. PW-13/A was obtained from the Registrar Birth and Death, District Hamirpur. As per these certificates, date of birth of the prosecutrix is 28.5.1990. 8. PW-3/A. Certificate Ext. PW-10/A regarding date of birth of the prosecutrix was obtained from Amar Nath Verma (PW-10) Principal, Government Senior Secondary School, Galore and birth certificate of the prosecutrix Ext. PW-13/A was obtained from the Registrar Birth and Death, District Hamirpur. As per these certificates, date of birth of the prosecutrix is 28.5.1990. 8. The wearing apparels of the prosecutrix and the slides taken in possession by RW-1 and the wearing apparels of the accused taken in possession by PW-2 and the shirt recovered pursuant to his disclosure statement Ext. PW-9/A and the blood stained leaves and stones taken in possession from the place of occurrence were sent by the Investigating Agency to the State Forensic Science Laboratory H.P. Junga and on chemical examination of such articles human blood of B Group was found on Salwar, Kameej, Dupatta and Tauliya of the prosecutrix, leaves, stones and vaginal smear slides. Human blood was found on the shirt of the accused but the group thereof could not be ascertained. Human blood and semen was detected on the underwear of the accused and human semen was detected on his pant. The report of the said Laboratory in this regard is Ext. PW-1/B. 9. On completion of the investigation, the Officer Incharge of Police Station, Barsar submitted a charge-sheet against the accused under Sections 376(2) (f), 201 and 506 IPC and Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. The learned Sessions Judge, Hamirpur framed a charge against the accused under Section 376(2) (f) IPC to which the accused pleaded not guilty and claimed to be tried. 10. To prove the charge against the accused, prosecution examined 18 witnesses, Statement of the accused was recorded under Section 313 Cr. P.C. wherein he denied the prosecution case as a whole. The accused led evidence regarding his ailment and treatment during the period he remained in custody in the case and-examined Praveen Kumar (DW-1) and Ajay Sharma (DW-2). 11. On the basis of the evidence on record, the learned Sessions Judge convicted the accused under Section 376(2)(f) Indian Penal Code and sentenced him to rigorous imprisonment for 10 years and to pay a fine of Rs. 2000/- and in default of payment of fine to undergo further imprisonment for a period of three months. 11. On the basis of the evidence on record, the learned Sessions Judge convicted the accused under Section 376(2)(f) Indian Penal Code and sentenced him to rigorous imprisonment for 10 years and to pay a fine of Rs. 2000/- and in default of payment of fine to undergo further imprisonment for a period of three months. The State felt aggrieved by the quantum of sentence imposed on the accused, hence, this appeal by it for enhancement of the sentence. 12. We have heard the learned Additional Advocate General for the State and the learned Counsel for the accused and have also perused the records. 13. The appellant/State seeks enhancement of the sentence awarded to the accused on the ground that the trial Court could not have passed lesser sentence than the minimum prescribed for the offence under Section 376(2) IPC without recording special reasons for the same. The trial Court in awarding the lesser sentence to the accused has given the only reasons that imprisonment for minimum term shall be adequate in the interest of justice. However, this cannot be treated to be an adequate or special reason for awarding such punishment as has been awarded by the trial Court to the accused. It is further averred that failure to impose adequate sentence not only results in miscarriage of justice but also harm the justice system, therefore, the sentence awarded by the trial Court to the accused which is not in consonance with the guilt of the accused deserves to be enhanced. Thus, the grievance of the appellant/State is that the trial Court has failed to record special reasons for awarding the lesser punishment which is not in consonance with the gravity of the offence committed by the accused. Therefore, according to the State, the sentence awarded to the accused deserves to be enhanced. 14. The accused has been held guilty of the commission of an offence under Section 376(2) (f) i.e. of committing rape on a girl under 12 years of age. It cannot be disputed that there is spurt in the crime against women and the offence of rape is the gravest and most heinous amongst such* crimes. It is not only a crime against the person of the victim but is a crime against society. It destroys the psychology of the victim and pushes her into deep emotional crisis. It cannot be disputed that there is spurt in the crime against women and the offence of rape is the gravest and most heinous amongst such* crimes. It is not only a crime against the person of the victim but is a crime against society. It destroys the psychology of the victim and pushes her into deep emotional crisis. The society on coming to know of the rape looks down upon her as if she is an abhorrent creature. Rape is a crime against basic human rights and is violative of the victims most cherished right to life under Article 21 of the Constitution. Therefore, a person guilty of commission of rape deserves to be severely punished, to achieve the main aim of the punishment that is prevention of offences and thereby protecting the society from crimes and criminals. It is for this reasons that the law provides minimum punishment for the commission of the offence of rape. 15. The relevant part of the provisions of Section 376 IPC which provides punishment to a person who has committed a rape on a woman under 12 years of age reads as follows :- "376(2) whoever, - (a) to (e) xxx xxx xxx (f) Commits rape on a woman when she is under twelve years of age; xxx xxx xxxx (g) Xxx xxx xxx 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." 16. It is evident on a bare reading of the aforesaid provisions that in case where the accused is found guilty of the commission of an offence punishable under Section 376(2) (f), the Court shall pass the minimum sentence of rigorous imprisonment for 10 years and fine. It is, however, within the discretion of the court to pass severer punishment of imprisonment for life. The Court can award lesser punishment than the minimum provided by law only after recording adequate and special reasons therefore. It is, however, within the discretion of the court to pass severer punishment of imprisonment for life. The Court can award lesser punishment than the minimum provided by law only after recording adequate and special reasons therefore. Thus, in the ordinary course the Court convicting a person of the commission of an offence punishable under Section 376(2) (f) shall not pass a sentence of less than 10 years rigorous imprisonment and fine. In the event of its passing lesser than 10 years rigorous imprisonment it has to again adequate and special reasons which must be based on mitigating circumstances available on the record. If there are no such special or adequate reason(s) awarding of imprisonment for a term less than 10 years rigorous imprisonment will be bad in law and such punishment will be liable to be enhanced. 17. In the case in hand, the term of imprisonment awarded to the accused is the minimum provided in law. It is not less than the minimum sentence of rigorous imprisonment of 10 years, as averred for the State in the memorandum of appeal; therefore, no special or adequate reasons were required to be recorded for awarding the rigorous imprisonment of 10 years- to the accused. Therefore, the quantum of sentence awarded to the accused does not call for interference by this Court on the ground that being on the lesser side adequate and special reasons ought to have been recorded by the trial Court for awarding such sentence. 18. As already stated hereinabove, to award higher punishment I than the minimum prescribed by law is within the discretion of the Court. The exercise of such discretion is a highly complex matter and j has to be decided keeping in view various factors and a reasonable proportion has to be maintained between the offence and the punishment. 19. While dealing with the discretion of the Court in awarding the punishment, a Division Bench of this Court in Hari Ram v. State of HP., 2002 Cri. L.J. 3532 held as under: Accused was a total stranger to the Prosecutrix and no test identification parade was held in accordance with law. Therefore, the identity of the accused as the rapist is not established and the possibility of some other person having committed the crime cannot be ruled out. 25. The test identification parade of the accused before the Judicial Magistrate was admittedly not conducted. Therefore, the identity of the accused as the rapist is not established and the possibility of some other person having committed the crime cannot be ruled out. 25. The test identification parade of the accused before the Judicial Magistrate was admittedly not conducted. However, the basic question is whether, in the facts and circumstances of the case, the test identification parade of the accused was required. The accused admittedly was not earlier known to the prosecutrix but she had identified the accused as the rapist. As per the prosecutrix, the accused alighted from the Bus when she was walking all alone on the road. Thereafter the accused lifted the prosecutrix, gagged her mouth so that she could not raise alarm and then took her to a Nallah. Thereafter he removed her wearing apparels, opened his own trouser and thereafter committed rape on her. This entire process could not be completed within such period and in such circumstances in which the prosecutrix had no opportunity to see the accused properly and preserve his facial features so as to identify him at a later stage, i Evidently, the time which might have been consumed in lifting the prosecutrix from the road, gagging her mouth, taking her to Nallah, taking off her clothes and his own clothes by the accused was more than enough for the prosecutrix to preserve the facial features of the accused. Therefore, her identifying the accused as the rapist at the | trial cannot be doubted. 26. In Harish Kumar and others v. State of Himachal Pradesh, 2001(1) Sim.LC. 281. This Court held as under:- "30. PW-2, the informant has stated about the arrival of accused Ram Kedar and Laxmi Nand in the hotel at Tapri where the complainant party was staying and regarding inquiries made by them about the complainant having any permit (pass) to enter Kinnaur. When the witness informed them in the negative, the said accused told them that police would arrest and put them behind the bars for having entered. Kinnaur without permit. PW-2 has further stated that these two accused assured them that they would get the requisite pass from SDM, Bhawanagar. So has been stated by PW-1 and PW-3. When the witness informed them in the negative, the said accused told them that police would arrest and put them behind the bars for having entered. Kinnaur without permit. PW-2 has further stated that these two accused assured them that they would get the requisite pass from SDM, Bhawanagar. So has been stated by PW-1 and PW-3. This discussion was of serious nature so far as the complainant and his companions (PW-1 and PW-3) must be attentive during discussion and thus had ample time and opportunity to see Ram Kedar and Laxmi Nand so as to preserve their facial features to identify them at later stage. 31. In view of the above, the contention of the learned Counsel for these accused that they were not known to the witnesses earlier and their test identification parade was not held, therefore, their identification by the prosecutrix (PW-1), informant (PW-2) and PW-3 for the first time in the Court in unreliable, is not sustainable." Thus, keeping in .view the fact that the prosecutix had seen the accused for quite some, time enough for her to preserve the facial features of the accused the identity of the accused by her at the trial cannot be doubted. Therefore, the absence of conducting of test identification parade in this case is of "no help to the accused to support his plea for acquittal. 27. No other point was raised to support the plea of the accused for acquittal nor there appear any in view of the evidence on record. Therefore, contention of the accused being well founded, calls for no interference. 28. In view of the conclusions recorded here in above, the sentence awarded to the accused by the learned trial Judge also does not call for enhancement. 29. As a result, this appeal merits dismissal and is accordingly dismissed.