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2009 DIGILAW 656 (JK)

Mir Hussain v. State Of J. &K.

2009-12-18

J.P.SINGH

body2009
1. The appellant, Mir Hussain, accused of committing rape on Mrs. X, on March 03, 1989 has been convicted and sentenced to rigorous imprisonment for five years and fine of Rs. 5000/-, besides the default Sentence of three months, by the Additional Sessions Judge, Doda, hereinafter to be referred as the "trial Court," for short. 2. Questioning the Conviction and Sentence, he has filed this Appeal. 3. Learned Senior Counsel, appearing for the appellant, contends that the trial Court has acted illegally in relying upon the statement of the prosecutrix, which suffered from major contradictions, and, was even otherwise, un-worthy of credence and that there was no other acceptable evidence on records, to support the appellants Conviction and the prosecution story. 4. Referring to the statements of the prosecution witnesses and pointing out contradictions and exaggerations appearing therein, learned counsel additionally submitted that the appellants trial being un-fair and violative of the provisions of Article 21 of the Constitution of India, he was entitled to be acquitted, and, in any case, set to liberty, for the Sentence already undergone by him, during the trial of more than 19 years and the pendency of the Appeal, for over a period of one year, would serve the ends of justice, in case he was otherwise found guilty of the offence. 5. Per-contra supporting the Judgment of the trial Court, learned State Counsel urged that the trial Court has properly appreciated the evidence produced in the case and leniency having already been shown by the trial Court, in convicting the appellant, for five years only, as against the minimum Sentence of seven years, further reduction in the quantum of punishment, may not, be warranted, in public interest. 6. I have heard learned counsel for the parties and considered their submissions in light of the evidence produced in the case. 7. Learned trial Court has given the resume of the prosecution and the defence witnesses in its judgment, reference whereto, shall be made if and wherever necessary, to deal with the submissions made by learned counsel for the parties. 8. Before dealing with the submissions, reference to the prosecution story and the facts leading to the appellants Conviction and punishment may be stated thus. FACTS:- 9. 8. Before dealing with the submissions, reference to the prosecution story and the facts leading to the appellants Conviction and punishment may be stated thus. FACTS:- 9. On March 03, 1989, the prosecutrix, alongwith her minor brother Karima, had gone to Malwas Nursery, Doda, around noon, for mowing grass, that the appellant appeared there to tell her to accompany him towards the river Chenab. On her refusal, the appellant slapped the prosecutrix and her minor brother, telling him to push off. He caught hold of the prosecutrix by the breasts tearing her shirt. In the struggle, the prosecutrix, sustained injuries on her arm and foot. The appellant forcibly laid her on the ground, gagged her mouth with his turban, and repeatedly committed sexual inter-course. She became un-conscious and her brother later informed PW Taj Din, the prosecutrixs husband about the occurrence, who retrieved her from Malwas Nursery. 10. On Taj Dins written report, FIR No. 25/1989 was registered at Police Station, Doda, which on investigation, resulted in laying of the Final Police Report by the Police, with the Chief Judicial Magistrate, Doda, who committed it to the Sessions Court. 11. Finding a case for trial, the appellant was charged on July, 10, 1989 for commission of offences punishable under Sections 354/376 RPC. 12. Denying the charge, the appellant claimed to be tried. 13. The prosecution examined PW-1, the prosecutrix; PW-2, Taj Din Complainant; PW-3, Massar Din, prosecutrixs brother-in-law; PW-4, Karima, minor brother of the prosecutrix; PW-5 Dr. Nahida Azad, who had conducted the medical examination of the prosecutrix, besides two Investigating Police Officers PW-6, Niaz Ahmed; and PW-7 Mohd. Iqbal. 14. The appellant examined DW-1 Abdul Gani and DW-2, Ghulam Mohd, to project his plea that the prosecutrix was a lady of ill repute and that he had been falsely implicated in the case. 15. According to the prosecutrix, she had gone to Malwas Nursery alongwith her minor brother Karima, to get grass for the cattle, when the appellant appeared there and asked her to company to the bank of the river. She refused. The appellant slapped her and her younger brother telling him to run away. He caught hold of her by the breasts and forcibly laid her on the ground, committing sexual intercourse twice, by covering her face with his turban and thereafter, ran away. She refused. The appellant slapped her and her younger brother telling him to run away. He caught hold of her by the breasts and forcibly laid her on the ground, committing sexual intercourse twice, by covering her face with his turban and thereafter, ran away. She became unconscious and was retrieved by her husband and PW Masar Din, the husbands brother. She was later examined by the doctor at Doda. While under cross-examination, she stated that Ghulam Nabi was her earlier husband, with whom she had stayed for five years before Divorce. She thereafter, remained with Gani Parray, and was recovered on her fathers complaint. She was married to Taj Din, complainant who had paid Rs.6000/- to her father. The appellant had cut the girdle of her Shilwar with a blade and had kept the blade and the Shilwar aside while committing sexual intercourse. She bled for three days and her Shilwar was also stained. 16. The complainant Taj Din, has testified to his having been told by the prosecutrixs brother about the occurrence, whereafter he and his brother Masar Din retrieved her from Malwas Nursery. 17. PW-Masar Din too, supports the complainants version. 18. PW-Karim, the prosecutrixs brother, proves the appellants presence at Malwas Nursery and the appellants slapping and telling him to run away from the place of occurrence and his informing the complainant and Masar Din about the occurrence. 19. According to Dr.Nahida Azad, she had examined the prosecutrix on March 04, 1989 at Doda and found the following injuries on her person: i) Small scratches on right buttock; ii) Mild tenderness on left clavicular region and scapular region; iii) Mild tenderness on lateral side of the left foot; 20. According to her, the victim was used to intercourse; however, keeping in view the injuries on her person, as well as the presence of dead spermatozoa in the vagina, the rape may have been performed within twenty four hours of the examination. 21. The trial Court has found the statement of the prosecutrix, acceptable, which even otherwise stood corroborated by other prosecution evidence, as also by the statement of PW-5 Dr. Nahida Azad, who had found small scratches on right buttock of the prosecutrix, mild tenderness on left clavicular and scapular regions, mild tenderness on lateral side of left foot, besides presence of dead spermatozoa in the vagina. 22. Nahida Azad, who had found small scratches on right buttock of the prosecutrix, mild tenderness on left clavicular and scapular regions, mild tenderness on lateral side of left foot, besides presence of dead spermatozoa in the vagina. 22. Finding the prosecution story to have been proved by the prosecution evidence, the trial Court, accordingly held the appellant guilty of the offence punishable under section 376 RPC. 23. Taking, however, a lenient view, in view of the pendency of the trial for about 19 years and 3 months, the appellant was sentenced to imprisonment for five years and fine of Rs 5000/-, besides the default sentence of three months. DISCUSSION: 24. According to the appellants learned Counsel, the statement of the prosecutrix was unworthy of credence, in that, she had introduced such facts, in her statement, which had not been established during the investigation of the case and this according to learned counsel would make her statement doubtful, entitling the appellant to the benefit of doubt, additionally because the prosecutrix was a lady of ill-repute and the statement made by her in the Court would not thus be believed. 25. The facts, which could not be substantiated during the investigation of the case, referred to by the learned counsel, are the cutting of girdle of the prosecutrixs trouser, with a blade by the appellant, before committing the offence, and staining of her clothes with the seminal discharge. 26. The appellants Counsel is right in saying that the prosecutrix had made some exaggerations in her statement, saying that the appellant had cut the girdle of her `Shilwar with the blade, the clothes were stained with the seminal discharge, and blood had oozed after the intercourse; but the exaggerations made by the prosecutrix in her statement, would not, in my opinion, affect the substratum of the relevant allegations, which she had made against the appellant, of slapping her, forcibly laying her on the ground and there-after committing sexual intercourse, without her consent, at Malwas Nursery on March 03, 1989 around noon. 27. The version of the incident, reported by the prosecutrix, indicating the appellant to have caused injuries to her during the course of occurrence, is fully supported by the independent evidence of PW-5, Dr. Nahida Azad, who found injuries on the right buttock, left clavicular, and scapular regions, besides on the left foot of the prosecutrix. 27. The version of the incident, reported by the prosecutrix, indicating the appellant to have caused injuries to her during the course of occurrence, is fully supported by the independent evidence of PW-5, Dr. Nahida Azad, who found injuries on the right buttock, left clavicular, and scapular regions, besides on the left foot of the prosecutrix. The presence of the appellant at the place of occurrence is supported by PW-4, Karima, the prosecutrixs minor brother, who had seen the appellant struggling with the prosecutrix. Torn shirt of the prosecutrix, too lends support to the prosecution story; the improvements appearing in the statement of the prosecutrix are, therefore, required to be ignored, in the process of separating grain from the chaff, which the trial Court has rightly done in the present case, in coming to the conclusion that the appellant had committed sexual intercourse with the prosecutrix, against her consent, particularly when the cross examination of the prosecution witnesses by the appellant did not bring out any such facts or material on the basis whereof, the statements of the prosecution witnesses, be disbelieved. The appellant has miserably failed to rule out his presence at the time and place of the occurrence, and in this view of the matter, the statement of the prosecutrix, which is supported by PWs Dr. Nahida Azad and Karima, can not be disbelieved. 28. The appellants Counsels plea that the prosecutrix was a lady of ill-repute and no reliance should be placed on her statement is without merit, in that, ill-reputation of a female, would not give licence to any one to intrude into her privacy, outrage her modesty and fiddle with her body, honour and respect. 29. It is true that the prosecutrix had been sold by her father to the person with whom she was presently living, pursuant to her contracting marriage with him and that her father had initiated proceedings for her recovery at an earlier occasion also in which case, the appellant too was an accused, but these happenings prior to the date of the occurrence, would not affect the prosecution case as such. These facts rather hint at appellants continuing lust for the prosecutrix, and his criminal intention to have her by force. These facts rather hint at appellants continuing lust for the prosecutrix, and his criminal intention to have her by force. That apart, the act of the prosecutrixs father in getting money for consenting to the prosecutrixs marriage with PW Taj Din, pursuant to the prevalent custom in the area, would not make the prosecutrix a lady of ill virtues. 30. Coming to the last contention of the appellants Counsel that the appellants trial, having lasted for more than 19 years, his Conviction may be impermissible, some facts regarding the appellants trial are required to be noticed. The appellants trial has taken 216 hearings to complete. Out of these, the trial had to be adjourned 42 times for the appellants non-appearance. Non-availability of the Presiding Officer(s) and the prosecution witnesses, on several dates of hearing, too has contributed to the delayed trial of the case. 31. It is, therefore, apparent from the records that the appellant too had contributed to his delayed trial and in this view of the matter, he cannot press into service the provisions of Article 21 of the Constitution of India, to urge that his trial was unfair, in that, none can, in law, be permitted to take benefit of his own wrongs. 32. That apart, the delay in the disposal of the case to which the appellant too has contributed, may not be sufficient enough, to dismiss the charge against the appellant, in view of the prevailing conditions in the State of the Jammu and Kashmir, where because of the law and order problem, and long spell of militancy related activities, the Criminal trials are often delayed, because of the circumstances, beyond ones control. The contention raised by the learned Counsel for the appellant that the appellants delayed trial has deprived him of his right to life and personal liberty under Article 21 of the Constitution of India, is, therefore, found to be without merit and is, accordingly, rejected. The second leg of the appellants counsels plea that the appellants delayed trial warrants reduction in the quantum of Sentence, shall, however, be dealt with, a little later. 33. For all what has been said above, the judgment of Conviction recorded by the trial Court is found to be well merited and supported by the evidence, which the prosecution has led in the case. 34. No interference therewith is, thus, warranted in Appeal. 35. 33. For all what has been said above, the judgment of Conviction recorded by the trial Court is found to be well merited and supported by the evidence, which the prosecution has led in the case. 34. No interference therewith is, thus, warranted in Appeal. 35. Coming to the question as to whether or not the quantum of Sentence awarded to the appellant, by the trial Court, warrants any reduction, few facts need to be noticed before determining the issue. 36. The appellant was, a young man of 25 years, when he was put to trial for offences punishable under sections 354/376 RPC. He is, now 46 years of age. 37. He remained in custody during trial for about five months, whereafter he was admitted to bail. 38. Pursuant to his Conviction and Sentence by the trial Court, he is in custody for one and a half years. He has thus, been in custody for nearly two years and his Conviction having been up-held, he is required to serve the remaining sentence of three years, besides payment of Rs 5000/- as fine. 39. The appellant and the prosecutrix belong to a remote hilly area of the State of Jammu and Kashmir, where, for non-availability of facilities, education and other necessities of life, backwardness still prevails, depriving the inhabitants of the area opportunities and atmosphere, requisite to inculcate, higher moral values, inter alia, of developing requisite sensitivity to the honour, dignity and respect, which the women folk deserve, for their greater role in building the Society. 40. Punishments, to which the offenders may be liable to under the provisions of the Ranbir Penal Code, are as follows:- (1) Death; (2) Imprisonment for Life, (3) Imprisonment for various descriptions, less than life; (4) Forfeiture of property, & (5) Fine; 41. The legislature has, in its wisdom prescribed sentences, which may be awarded by the Courts, in view of the gravity of offence(s) committed by the offender. While prescribing one or the other, above mentioned sentences, the legislature indicates the maximum, alternative or wherever so intended, the minimum sentence awardable to the offender for the offence committed. 42. The legislature has, in its wisdom prescribed sentences, which may be awarded by the Courts, in view of the gravity of offence(s) committed by the offender. While prescribing one or the other, above mentioned sentences, the legislature indicates the maximum, alternative or wherever so intended, the minimum sentence awardable to the offender for the offence committed. 42. Wherever the maximum sentence awardable to the offender is prescribed in the charging Section, the legislatures intention of vesting discretion in the Courts, to award any description of sentence, lesser than the maximum prescribed therefor, may be gathered from the use of expressions like, `may extend to, appearing in various Sections of the Penal Code. 43. Wherever the sentence, in the alternative, is provided for, the discretion left to the Courts, is, however, limited, to award one of the alternative sentences. 44. In short, it is the phraseology employed in the Charging Section, which informs the legislative intent, indicating as to how much discretion the legislature had intended to leave with the Courts to award punishment to the offender(s). 45. In those cases where the discretion was left with the Court, to determine the award of punishment to the offender, the question that often arises for determination, is as to how should a Court exercise such discretion, in determining the sentence awardable to the offender. 46. There are various factors which enter the mind of the Presiding Officers of the Courts, while determining the award of punishment to the offender(s). 47. It is at this stage that divergence in the opinion of the punishing Authorities, often appear, and it is primarily for the reason that the contemplation of the Presiding Officers, gets influenced by their individual philosophies regarding award of punishments. 48. The votaries of deterrent punishment, may opt for higher quantum of punishment, whereas those supporting the reformist theory may opt for lesser custodial punishment. 49. 48. The votaries of deterrent punishment, may opt for higher quantum of punishment, whereas those supporting the reformist theory may opt for lesser custodial punishment. 49. In order to ensure uniformity in the award of punishment(s), to the extent possible, the societal needs, social background of the offender and the victim, the affect which the Conviction and Sentence may have on the dependents of the offender/victim and various other like factors, are required to be taken into consideration, by the Courts, vested with the discretion of deciding the quantum of punishment, keeping in view the legislative intent, gathered from various provisions of the Code of Criminal Procedure and other Laws in force, providing for Courts consideration on the factors, contemplated in awarding punishments, by such provisions of the laws in force, other than those provided for in the Ranbir Penal Code, in considering the award of requisite lesser or higher degree of punishment to the offender, to serve the ends of justice and public interest. 50. In order to determine as to whether lesser or higher degree of punishment was awardable to the offender, he needs to be afforded, a meaningful opportunity of hearing, to know about his antecedents, social status, responsibilities and such other information, on such factors, which may be helpful to the Court, in coming to the right decision, about the quantum of punishment awardable to him, keeping, however, the gravity of the offence committed by him and its affect on the society, in view. 51. Hearing the convict, through his/her Advocate, on the afore-said aspects, may not serve the intended purpose, And the information derived from the personal examination of the convict may be needed to determine the requisite quantum of awardable Sentence. The examination of the convict by the Court, after his Conviction, thus, becomes necessary, to opine as to what should be the quantum of Sentence awardable to the offender. 52. Experience shows that before recording its opinion on Conviction or acquittal, in a criminal trial, every aspect of the case, evidence and law on the subject, is dealt with by the Courts, spelling out its mind and views, on the above issues, by drawing detailed judgments; But in majority of such cases, very little is reflected, in spelling out the mind, as to what factors had entered the mind of the Courts in selecting lesser or higher degree of punishment to the offender. 53. Absence of detailed reasons by the Courts, on the factors entering their mind in determining the quantum of Sentence awardable to the offender, often results in disadvantage to the Appellate Court in determining as to whether the Sentence awarded to the offender, was the appropriate awardable sentence under law. 54. The judgment of the Court, pursuant to the Conviction of the offender, on Sentence, shorn of requisite reasons, to support the awarded Sentence, will thus, be violative of the provisions of Section 367 of the Code of Criminal Procedure, in that, no distinction may be contemplated in the judgment of Conviction, and that of the Sentence, in view of the explicit provisions of Section 367 of the Code of Criminal Procedure, which contemplate no distinction in the judgment of Conviction and that of the Sentence. 55. The trial Courts as also the appellate Courts in the State, are accordingly informed to adhere to the provisions of section 367 of the Code of Criminal Procedure Svt. 1989, while drafting orders on Sentence as well, of those found guilty. 56. In the above backdrop, I shall now consider the provisions of Section 376 of the Ranbir Penal Code, which for facility of reference are re-produced here-under:- "376 Punishment for rape: (1) Whoever, except in the cases provided for by sub-section (2) commits rape, shall be punished with imprisonment of either description for a term which shall not be less than seven years but which may be for life or for a term which may extend to ten years and shall also be liable to fine unless the woman raped is his own wife and is not under twelve years of age, in which case, he shall be punished with imprisonment of either description for a term which may extend to two years or with fine or with both. Provided that the Court may, for adequate and special reasons to be mentioned in the judgment, impose a Sentence of imprisonment for a term of less than seven eyars." (2) X x x x x x" 57. Perusal of the provisions of the Section quoted hereinabove, indicates that the offence committed by the appellant is punishable with either description for a term, which shall not be less than seven years and may extend to 10 years, or for life and also to fine. 58. Perusal of the provisions of the Section quoted hereinabove, indicates that the offence committed by the appellant is punishable with either description for a term, which shall not be less than seven years and may extend to 10 years, or for life and also to fine. 58. The proviso appended to the Section provides that for adequate and special reasons, to be mentioned in the judgment, a sentence of imprisonment for a term of less than seven years may also be permissible. 59. Reading of the Section as a whole thus demonstrates that in the absence of adequate and special reasons, the offender, guilty of the offence punishable under section 376 RPC, is liable to be punished for the minimum Sentence of seven years which, depending on aggravating circumstances, in which the offence was committed, may extend to ten years or even to life. 60. Adequate and special reasons, in terms of the proviso appended to section 376 RPC may not justify sentence of less than seven years in case of rape with minors or females suffering from one or the other disability. 61. While exercising discretion in considering the award of sentence to victims of rape, ranging from seven years to ten years and life, the nature and the manner in which the offence was committed and other factors as indicted elsewhere in this Judgment, may require consideration of the Court to determine requisite sentence for the offender. 62. While considering the appellants case, the trial Court has not considered it, on the above parameters in determining the sentence awardable to the appellant and has reduced the minimum awardable sentence prescribed in Section 376 of the Code, to five years and fine of Rs.5,000/-, taking only the factor of delayed trial, in view. It has further opted not to record statement of the appellant after his Conviction to know about the factors needed for determining the appropriate sentence awardable to him. 63. I would have remanded the case to the trial Court for consideration afresh on the question of sentence awardable to the appellant, keeping in view the above parameters, but in view of more than twenty years period which the appellants trial has already taken, it is considered inappropriate to remand the case, to the trial Court for determining the requisite punishment awardable to the appellant. 64. 64. The appellants case, therefore, needs to be considered on the basis of the information supplied by him through his Affidavit, indicating that he has a marriageable 22 years old daughter, besides the dependency of Ms. Sheena, Gulshan and Zulekha, his minor school going daughters, and a handicapped child, Bashir by name. 65. While determining the requisite Sentence for the act committed by him, the cry of the Society and the victim, for justice for the wrong done to her, is necessarily required to be kept in view. At the same time, it cannot be lost sight of that the appellant has suffered heavily because of the delayed trial, which was not wholly attributed to him and much of the delay had occasioned because of the prosecutions default and the non-availability of the Presiding Officer of the Court, seized of the case. 66. Accordingly, taking into consideration the societal conditions of the area, to which the appellant and the victim belong, appellants financial condition, dependency of minor daughters and disabled son on him and the affect which his further detention in custody may cause to his family, for the offence, which he committed more than 20 years ago, when his dependents were no more there in this world, and striking a balance of the above factors, with the irretrievable damage, stigma and agony, that has occasioned to the prosecutrix, because of the appellants savagery, and the interest of the society at large, reduction of some portion of the custodial sentence awarded to the appellant by the trial Court by its appropriate substitution by fine is considered appropriate, so that the dependents of the appellant do not suffer much for no fault of theirs, in the absence of any source of income with them. 67. Accordingly, while upholding the appellants Conviction under section 376 RPC, the judgment passed by the trial Court, sentencing the appellant to five years imprisonment and a fine of Rs.5,000/- is modified to imprisonment for four years and fine of Rs.35,000/-, with default sentence of seven months. The fine when realized is ordered to be paid to the prosecutrix. The Appeal is, accordingly, disposed of.