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2014 DIGILAW 775 (ORI)

State of Orissa v. Gopinath Nayak

2014-11-19

DEBABRATA DASH

body2014
JUDGMENT DEBABRATA DASH, J. 1. The State in this appeal under Section 377 of the Code of Criminal Procedure has called in question the inadequacy of the sentence imposed against the respondent by the learned C.J.M.-cum-Assistant Sessions Judge, Jeypore, after recording conviction for commission of offence under Section 376(2)(f), IPC against the respondent. 2. Prosecution case is that on 8-10-1995 evening around 6.00 p.m., which was the Kumar Purnima day, the informant (P.W. 1) with Raghunath, Babi, Samal and Surendra were plying cards on the verandah of the house of Raghunath. The victim girl aged about one and half year was then with her father (P.W. 1) where they were playing cards. The respondent a co-villager came there and took the victim from P.W. 1 saying that he would take her to give chocolate. So P.W. 1 left the victim in the custody of the respondent. When after about one hour, they did not return, P.W. 1 went in search of the respondent. Around 9.00 p.m. when the P.W. 1 was absent in his house, the respondent came with victim and left her in the custody of her mother, P.W. 5 when she was talking with her neighbour, namely, Saraswati in front of their house. At that time victim was crying. So, P.W. 5 asked the respondent as regards the reason for the same. But the respondent instead of replying, suddenly ran away. P.W. 5 then noticed blood oozing out of the vagina of the victim and also saw the said area to have been in flamed with the wearing apparels sustained with blood. The victim was immediately taken to the hospital. On arrival, the father of the victim, P.W. 1, lodged the FIR at the police station. 3. The S.I. of Police of Sunabeda Police Station, in the absence of the OIC registered the case and took up the investigation. The informant was examined at the hospital and also the requisition was given for examination of the victim. The blood stained cloth of the victim was seized under seizure list, Ext. 2. The blood stained shirt and chadi of the accused were seized under seizure list Ext. 3. All these were sent for chemical examination. The I.O. after examination of the other witnesses closed the investigation and finally submitted the charge-sheet. That is how the respondent faced the trial being charged for commission of offence under Section 376(2)(f), IPC. 2. The blood stained shirt and chadi of the accused were seized under seizure list Ext. 3. All these were sent for chemical examination. The I.O. after examination of the other witnesses closed the investigation and finally submitted the charge-sheet. That is how the respondent faced the trial being charged for commission of offence under Section 376(2)(f), IPC. 4. The trial Court on evidence of the evidence of ten prosecution witnesses as well as on going through the report of the doctors and also the chemical examiners report found the respondent to have committed rape upon victim girl aged about one year or little more. Accordingly, he has been convicted there under : However upon hearing the respondent and the learned State defence counsel and viewing the mitigating factor such as the respondent being the sole earning member of his family having small children and in the absence of record of previous conviction taking into account his age without any record of prior conviction passed an order directing the respondent to undergo rigorous imprisonment for a period of seven years and to pay a fine of Rs. 2,000/- with default stipulation for undergoing rigorous imprisonment for two months. It may be stated here that the trial Court as required by the said statutory provision has not indicated that such reasons are adequate and special for exercising such discretion of awarding sentence lesser than the minimum. 5. The State has preferred this appeal questioning the sentence to be inappropriate and not in conformity with the legal provision. This Court is thus called upon to examine that aspect in the touch stone of proven facts and circumstances and other relevant factors. 6. Learned Standing Counsel submits that in this case there surfaces no adequate and special reasons. According to him those indicated such as respondent having small children with poor financial status, his age and having no prior conviction to his credit are not adequate and special reasons which should lead the Court to award sentence less than the prescribed minimum. 6. Learned Standing Counsel submits that in this case there surfaces no adequate and special reasons. According to him those indicated such as respondent having small children with poor financial status, his age and having no prior conviction to his credit are not adequate and special reasons which should lead the Court to award sentence less than the prescribed minimum. It is submitted that those facts concerning the respondent are not enough to adopt the course departing from the normal and those are in the direction of seeking mercy by drawing sympathy which have very little role in the matter and cannot have a march over the factors as nature and gravity of ffence, its manner of commission, after on the society and its order. So he urges that it is fit case for appropriate enhancement of sentence and in the facts and circumstances it is a case for imposition of life imprisonment. 7. Learned counsel appearing on behalf of the respondent urges that in this case evidence is not at all satisfactory to arrive at the conclusive finding beyond reasonable doubt that it is the respondent who has committed the offence of rape upon the girl child of one and half year of old. He further urges that there is absolutely no direct evidence and simply from the fact that the respondent had taken the girl child and had then left after some house when injuries have been found, he cannot be attributed to be the author. Thus he submits that it is a case of acquittal. Next he submits that in this case after lapse of nineteen years enhancement of sentence would amount to travesty of justice. He further submits that the trial Court has rightly so sentenced finding adequate and special reasons. He also urges that the present condition of the respondent that he has somehow settled after release from jail would get seriously disturbed to the great suffering of respondent and his family members. 8. In view of the above submission of the learned counsel for the respondent seeking of acquittal on the basis of the evidence on record, this Court feel it proper to re-appreciate the evidence in order to Judge the sustainability of the finding recorded by the trial Court against the respondent. The evidence of P.W. 1 has been believed that the girl child was left in the custody of the respondent. The evidence of P.W. 1 has been believed that the girl child was left in the custody of the respondent. Next the evidence of P.W. 5 (mother) has been relied upon that when respondent left the child, he though was asked as to why she was crying, did not reply and immediately left. Whereafter she found blood coming out of the childs vagina with injuries thereon. The doctor (P.W. 10) having stated that she noticed lacerated injury on vagina, tearing of hymen occasioned from forcible penetration of a firm and elongated object of greater diameter then the inlet of vagina and it is likely by a penis, the trial Court in the absence of any sort of explanation by the respondent has definitely found the respondent to have raped the girl child as those evidence unerringly point the complicity of respondent and none else. The evidence of P.W. 1 is that it was around 6.00 p.m. when girl child was taken by the respondent to his custody, when he was playing cards. The evidence of P.W. 3 is also on the same score, it is the respondent who took the girl child around 6.00 p.m. Similarly, P.W. 2 has stated in the same vein. The evidence of mother, P.W. 5 is that it was around 9.00 p.m. this respondent handed over the girl child to her in presence of P.W. 6 which is corroborated by P.W. 6 and also the fact that the respondent ran away instead of answering the query as regards the girl child crying continuously which stands again as a strong circumstance adverse to the claim of innocence of the respondent. During the interim period, since the time took the girl child from P.W. 1 and left with P.W. 5, it is the again evidence of P.W. 4, the betel shop owner that respondent having gone with the girl child had purchased the chocolate and again left with the girl child. Interestingly, the respondent has not given any explanation if the girl child remained with someone else during this period and rather the evidence is clear that he has avoided to receive any question in that light lest he may be compelled to answer the girl child, continuously crying while being carried by the respondent. Interestingly, the respondent has not given any explanation if the girl child remained with someone else during this period and rather the evidence is clear that he has avoided to receive any question in that light lest he may be compelled to answer the girl child, continuously crying while being carried by the respondent. It is normal conduct that he must have enquired as to the reason of this bleeding injury on the vagina which certainly cannot go unnoticed. So this circumstance heavily weighs on the mind of the Court as to be adversely pointing at the respondent as regards his complicity the doctors evidence lends full corroboration as regards the penetration and the injury being result of the same. Moreover, on the shirt and chadi of the respondent when human blood of B Group has been found by the chemical examiner, the same has also been found on the frock of the girl child. All these evidence establish beyond reasonable doubt that it is the respondent who has committed rape upon one and half year girl child, when she was in his custody and during that period. Therefore, the submission of the learned counsel for the respondent that the finding of the trial Court is not founded upon proper appreciation of the evidence, merits no acceptance. The trial Court thus is found to have rightly convicted the respondent. 9. For commission of offence under Section 376(2)(f), IPC, the minimum sentence prescribed is rigorous imprisonment for a term of ten years extending to life, and also fine. Under the proviso the power remains with the Court that by assigning adequate and special reasons in writing in the judgment it can impose sentence of imprisonment of either description for a term of less than ten years. In view of above statutory provision, the trial Court instead of awarding minimum sentence prescribed has awarded the sentence of imprisonment for lesser period than the minimum i.e. seven years of rigorous imprisonment instead of ten years of rigorous imprisonment. It has not stated about the satisfaction that the reasons are adequate and special. So now in this appeal, it is required to be seen as to whether there appears the reasons which are enough in the proven facts and circumstances of the case to drive the court to even impose lesser punishment than the prescribed minimum. 10. It has not stated about the satisfaction that the reasons are adequate and special. So now in this appeal, it is required to be seen as to whether there appears the reasons which are enough in the proven facts and circumstances of the case to drive the court to even impose lesser punishment than the prescribed minimum. 10. The principle is well settled that when the legislature have prescribed minimum sentence ordinarily in case of conviction, the Court is called upon to award that sentence at the minimum and showing of leniency is normally impermissible. It has to be borne in mind that prescription of such minimum sentence extending to even higher has been so mandated by the legislature looking into the nature and gravity of the offence, its affect on the society and the society cry in combating commission of such crimes besides viewing the rise of such kind of offence stalling the State in the march of progress of inclusive growth as well as from the victims point of view. In order to exercise the power, under the proviso, the Court is thus called upon to give adequate and special reason and to put up the same in writing expressing satisfaction that such discretion has been exercised properly. The word adequate and special reasons clearly indicate that the reasons most not be normal or ordinary which are taken into consideration in the matter of imposition of sentence in other offences but must be above those. In other words, to show that such reason are not only adequate but special in the case compelling the Court to have a departure from the normal rule of sentence and to proceed to award lesser sentence than the minimum prescribed. 11. In case of commission of such kind of offence, the criminal test has little to weigh in mind and its the crime test which mostly control the field. The word adequate finds mention first and then the word special. So, both have to be found out. In my humble view, when it is said adequate it refers for viewing the nature and gravity of the offence, the manner of its commission, the affect of the same on the society as large and the social order as well as the suffering of the victim. So, both have to be found out. In my humble view, when it is said adequate it refers for viewing the nature and gravity of the offence, the manner of its commission, the affect of the same on the society as large and the social order as well as the suffering of the victim. The other word special refers to the particular case which is for viewing the status of the convict and other conditions in relation to the convict. The legislature having purposely couched the proviso, by wording so, first indicating the word adequate and then special, it appears to have intended that only when adequate reasons are found the Court is called upon to search for special reasons and upon finding both to be existing the justification would stand for awarding punishment less than the minimum prescribed. 12. The above view of mine derives further strength from the view expressed by the Hon'ble Apex Court in case of Ravji vs. State of Rajasthan, 1996 (2) SCC 175 : AIR 1996 SC 787 that in such type of cases, it is the nature and gravity of the crime but not the criminal, which are germane for consideration of appropriate punishment in a criminal trial. 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 cry for justice against the criminal. If for extremely heinous crime of murder perpetrated in a very brutal manner without any provocation, most deterrent punishment is not given, the case of deterrent punishment will lose its relevance. 13. The Hon'ble Court in case of State of Madhya Pradesh vs. Munna Choubey, 2005 (1) Crimes 254 (SC) : AIR 2005 SC 682 have said the following prophetic words. Imposition of sentence without considering its effect on the social order in many cases may be in reality a futile exercise. 13. The Hon'ble Court in case of State of Madhya Pradesh vs. Munna Choubey, 2005 (1) Crimes 254 (SC) : AIR 2005 SC 682 have said the following prophetic words. Imposition of sentence without considering its effect on the social order in many cases may be in reality a futile exercise. The social impact of the crime, e.g. where it relates to offences against women, dacoity, kidnapping, misappropriation of public money, treason and other offences involving moral turpitude of moral delinquency which have great impact on social order, and public interest, cannot be lost sight of and per se require exemplary treatment. Any liberal attitude by imposing meager sentences or taking too sympathetic view merely on account of lapse of time in respect of such offences will be result wise counterproductive in the long run and against societal interest which needs to be cared for and strengthened by string of deterrence inbuilt in the sentencing system. 14. In a recent decision of the Hon'ble Supreme Court the Apex Court in case of Shyam Narain vs. State of NCT of Delhi, 2013 (4) Supreme 25 : AIR 2013 SC 2209 have held that 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 realize 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 against 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 that 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. While carrying out this complex exercise, it is obligatory on the part of the Court to see that 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. 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 vested with seriousness and sensitivity by this Court. 15. Keeping in mind the above authoritative pronouncement, the reasons as are culled out from the order of the trial Court in imposing the sentence less than the prescribed cannot be said to be adequate and special and that too also taking into account all the relevant factors. Thus the cumulative requirement of law is not fulfilled in the present case. 16. We are with a case where the girl child who is the victim is totally incapacitated to communicate and that too it is only her mother and then her father being familiar with her from the time of birth and bringing her up can get to know something from her by signs, gestures, laugh and cry as well as facial expressions which are the modes that she can express through. The simplicity of parents is well seen from the fact that they have gone to describe the incident before others. The father without thinking anything for a moment, had given the custody of the child to the respondent on his desire reposing utmost faith and confidence and accepting respondents position as a guardian. The nature and character of the parents hailing from rural pocket of the State and they being law abiding citizens are well seen that when most of the parents in such kind of incidents would remain highly aggressive without hesitating to take law into their own hands, they have chosen to follow the rule of law. Nothing also surfaces to show that P.Ws. 1 and 4 were having so found financial status. Nothing also surfaces to show that P.Ws. 1 and 4 were having so found financial status. The type of abuse, depravity as well as the gravity of offence in the instant case shock the conscience of the society and this may stand as an example reaffirming of the justifications for the legislature to enact the special legislation (POCSO) containing stringent provisions and taking care of all other relevant factors. The severity of mental harm or injury suffered by the girl child in view of the commission of offence is well visualized just from the incident which has the definiteness of exerting mental trauma to all concerned and also the effect of causing physical disability. There has been total betrayal of faith by the respondent, who instead of being the guardian has turned to be the greatest foe. The age of the victim simplicity of her parents and their living condition have been taken advantage of. In view of all these, thinking comes to mind as to how God be so cruel to its just created creature, who is incapacitated to commit any mistake or fault in any matter, whatsoever. Considering all these above in the touch stone of the legal position as indicated, this Court without least hesitation set aside the order of sentence passed by the trail Court. The respondent is thus sentenced to undergo rigorous imprisonment for a period of eleven years instead of seven years and the sentence of fine is to remain as imposed by the trial Court. The respondent be taken to custody forthwith to serve the reminder of sentence and the trial Court is directed to take steps as per law in that regard. 17. The appeal is allowed to the extent as indicated above. Appeal allowed.