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2008 DIGILAW 339 (MP)

Sunil v. State of M. P.

2008-02-28

A.P.SHRIVASTAVA

body2008
JUDGMENT 1. This appeal is directed against the judgment of conviction and sentence dated 15.5.2002 passed by the Additional Sessions Judge, Lahar, District Bhind in ST No. 03/01 by which the appellant has been convicted under section 376 of IPC and sentenced to undergo rigorous imprisonment for ten years with a fine of Rs. 5,000/- with default stipulation. He has further been convicted under section 323 of IPC and sentenced to undergo rigorous imprisonment for six months. 2. The story of the prosecution, in short, is that on 23.10.2000 at about 11:00 a.m. when the prosecutrix (minor girl of about eight years of age) went to pick up dung, the appellant came there, took the prosecutrix to the nearby a bushes ("Beshram ki Jhadi"), threatened her, removed her undergarments and committed sexual intercourse with her. On hearing her cries, her mother Munni Devi and uncle Rajesh came there rescued her from the appellant. On this the appellant started beating the mother of the complainant/prosecutrix. At that time, Suresh (co-accused), who is the brother of the appellant, came there and he beat both Rajesh and the prosecutrix and ran away alongwith the appellant from there. The report was lodged at police station. The prosecutrix was sent for medical examination. Clothes and slides were seized by the police during investigation. After investigation, charge sheet was filed and the trial Court after conclusion of trial found the appellant guilty as stated in para one of this judgment. While the co-accused Suresh has been convicted and sentenced under section 323 of IPC but the present appeal has been filed by only appellant Suneel. 3. Learned counsel for the appellant has not challenged the finding of conviction of the appellant but regarding sentence it is submitted that at the time of incident the age of the appellant was about 18 years and he has remained in custody for more than seven years, therefore, he prayed for leniency in awarding the sentence and also prayed for undergone sentence. 4. In this case, the trial Court found the age of the prosecutrix as eight years. 4. In this case, the trial Court found the age of the prosecutrix as eight years. Therefore clause (f) of sub-section (2) of section 376 of IPC would be applicable which reads as follows: Clause (f) of sub-section 2 of section 376 of IPC lays down that -- "Whoever, commits rape on a woman when she is under twelve years of age, 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. 5. It is a settled view that punishment should always be awarded in accordance with the crime committed by the offender and the gravity of the offence. The Court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against the individual victim but also against the society to which the criminal and victim belong. The punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality with which the crime has been perpetrated, the enormity of the crime warranting public abhorrence and it should "respond to the society's cry for justice against the criminal." 6. The apex Court in the case of Dinesh @ Buddha v. State of Rajasthan reported in [ AIR 2006 SC 1267 ] has held that the physical scar may heal up, but the mental scar will always remain. When a woman is ravished, what is inflicted is not merely physical injury but the deep sense of some deathless shame. An accused cannot cling to a fossil formula and insist on corroborative evidence, even if taken as a whole, the case spoken to by the victim strikes a judicial mind as probable, judicial response to human rights cannot be blunted by legal jugglery. 7. In Kamal Kishore v. State of Himachal Pradesh [ AIR 2000 SC 1920 ] it was observed by the apex Court that only in very very exceptional situations and extremely rare contingencies, the less than the minimum sentence should be awarded. 7. In Kamal Kishore v. State of Himachal Pradesh [ AIR 2000 SC 1920 ] it was observed by the apex Court that only in very very exceptional situations and extremely rare contingencies, the less than the minimum sentence should be awarded. In this regard, it is observed that there should be "adequate and special reasons" and the other is that such reasons should be mentioned in the judgment. The expression "adequate and special reasons" indicates that it is not enough to have special reasons, nor adequate reasons disjunctively. There should be a conjunction of both for enabling the Court to invoke the discretion. It is also held that sentence - Imposition of less than minimum sentence - Special reason - Reason that occurrence took place 10 years ago and accused might have settled in life - Not special reason - Such reasons can be noticed in many other cases - Reason that victim has since married and has settled in life whereas accused could not marry because of disrepute - Also not special reason. 8. 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 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. ILR (2008) MP, 6 State of M.P. v. Babulal. 9. The learned trial Court has awarded the minimum sentence as prescribed under the relevant law. No 'adequate and special reasons' appear to reduce the sentence of appellant/accused. Rape is a heinous crime. It is against the society and a deterrent punishment is required to weed it out. Hence, the conviction and sentence as recorded by the learned trial Court is affirmed. The appellant shall be given the benefit of section 428 of CrPC. 10. In the result, this appeal fails and is hereby dismissed. A copy of this judgment be sent to the trial Court for necessary action.