Judgment This Criminal Appeal is filed under Section 374 Cr.P.C. by the Advocate for the appellant praying that this Hon’ble Court may be pleased to set aside the judgment and order of conviction and sentence dated: 30.03.2009/02.04.2009 passed by District and Sessions Judge, Kodagu, Madikeri and incharge Presiding Officer of Fast Track Court, Madikeri in Sessions Case No.58/2006-convicting the appellant/accused for the offence punishable under Sections 376(2)(f), 323 and 506(ii) of IPC, and for having committed an offence punishable under Section 376(2)(f) the appellant/accused is sentenced to undergo R.I. for ten years and also to pay fine of Rs.35,000-00 (Rupees Thirty Five Thousand only), for having committed an offence punishable under Section 323 OF IPC, the appellant/accused is sentenced to undergo S.I. for a period of six months and for having committed an offence punishable under Section 506(ii) of IPC, the appellant/accused is sentenced undergo S.I. for a period of six months. 2. The contents of First Information Report is as under: One Prema, W/o Venkatesh, aged about 25 years, Occupation: Coolie, gave a statement before the Police and the Medical Officer of Government Hospital and has furnished a memo to the PSI, Police Station Ponnampete. On the basis of it, Crime No.63/2006 was registered for the offence punishable under Sections 376, 323, 506 of the Indian Penal Code against the accused. She was residing in Thorebeedi, Ponnampete for the past two years three months. Her daughter is victim. Her mother is Haalamma. Her elder sister is Laxmi, her sister is Sannamma and her brother is Swamy. Her husband Venkatesh had deserted her about three years back. She used to go to Coolie work. There she met one person by name Rajesh and she got acquainted with him. He used to tell him that he was in love with her and he used to visit her house frequently. 3. The contents of the complaint further discloses that on 01.06.2006 – Thursday, herself, her sisters and brother went to coolie work at 8.00 a.m. On that day, Rajesh expressed that he was suffering from body pain and saying so, he stayed at home along with her daughter Vidya. He did not go to coolie work. Complainant went to coolie work and at 6.30 p.m., she returned to house and her daughter, victim was crying. He did not go to coolie work. Complainant went to coolie work and at 6.30 p.m., she returned to house and her daughter, victim was crying. She went inside and saw Rajesh had removed his underwear and kept her daughter, victim on his thigh and he was scrubbing the private part of the child with his private part and thereby committed sexual assault on the child. She went and snatched the child. At that time, Rajesh assaulted her and her daughter. He also threatened that he will not leave her, in case, if she narrates this incident to any third person. He also threatened that he will kill her. By that time, her sisters and brother came there. They also scolded him. He threatened that he will kill them. Private part of her child was reddish in colour, she had difficulty in passing urine and she was crying. She was frightened since Rajesh threatened her. She brought the child to the hospital on 03.06.2006. 4. Accused has committed sexual assault on her daughter, victim and also threatened to kill her. Since she was frightened due to threatening by the accused and her mother, her younger sister gave courage to lodge a complaint on 03.06.2006. 5. The Police after investigation have laid chargesheet against the accused for the offences punishable under Sections 376, 323, 506 of IPC. The contents of the chargesheet reveals that Ponnampet, comes under the jurisdiction of Ponnampet Police Station, Virajpet Taluk. The complainant was residing at Thorebeedi. On 01.06.2006 at 2.30 p.m. accused had committed sexual assault on her daughter, victim, who is two years old. When she went to rescue the victim, accused assaulted her and threatened to kill her. 6. In the Trial Court, Trial was conducted by examining P.Ws.1 to 18 and Exs.P1 to P15 were marked. 7. P.W.1 is the mother of the victim. She has stated in her evidence that two years back, her daughter, victim has suffered injuries to her private part. On that day, she returned from coolie work and her daughter told her that while playing, she suffered injury to her private part, since a small stick touched her private part. She had not seen the accused in her house. She has not taken her daughter to the Hospital at Gonikoppal last year. Police have not recorded her statement in the hospital. She had not seen the accused in her house. She has not taken her daughter to the Hospital at Gonikoppal last year. Police have not recorded her statement in the hospital. She has not lodged any complaint against the accused. This witness has turned hostile to the side of the prosecution. During cross-examination, she denies the suggestion put to her that she was having illicit relationship with the accused, after her husband deserted her. 8. P.W.2 is a witness for mahazar. She has turned hostile to the side of the prosecution. 9. P.W.3 is a witness for mahazar of seizure of one Khaki shirt and one pant. She has turned hostile to the side of the prosecution. 10. P.W.4 is a witness for seizure of pant and two other clothes. 11. P.W.5 is a hearsay witness and younger sister of Prema – complainant. Prema told her that she saw accused committing rape against the victim. On the next morning, at about 6.30 p.m., Prema lodged a complaint in the Police Station. During cross-examination, she admits that herself and her husband are not in good terms with the accused. 12. P.W.6 is the Doctor, who examined the child - victim. The age of the child was about two years. He had issued certificate as per Ex.P4. 13. P.W.7 is the Doctor, who examined the baby - victim. On examination, she found that the baby was anxious. Bite marks was present on the right cheek, left temporum and left post auricular area. No axcillary or public hairs present. Breast nodules present, minimally tender. Abdominal Examination: Tenderness present, rigid bowl sounds present. External genetalia: High lateral thighs edematous blood stained with minimal bloodstains discharge. Labia majora oedematous severe tenderness present. Labia majora tear present, 2 cm x 0.5 cm. Purulent discharge present. Fossanaviqularis with severe tenderness. Hymen perforated, bleeding present, admits little finger easily. During her cross-examination, she states that she has not mentioned the injury of teeth bite, the baby was anxious, injuries on the right cheek, left temporum and left post auricular area. She has not mentioned the abdominal examination in the medical certificate. She has not mentioned in the medical certificate that purolent discharge present, fossanavicularis with severe tenderness. The stick injury does not show the tearing of perineum. While playing, if a child comes in contact with some object having hard surface, these injuries are not possible. She has not mentioned the abdominal examination in the medical certificate. She has not mentioned in the medical certificate that purolent discharge present, fossanavicularis with severe tenderness. The stick injury does not show the tearing of perineum. While playing, if a child comes in contact with some object having hard surface, these injuries are not possible. In case of child, it is uncommon to find discharge by scratching. It is not possible to cause injury by mechanical dilatation. The rupture of hymen need not be only by sexual intercourse. She cannot note the physical force that is used during sexual intercourse. The injuries and the tearing are only due to using of force during sexual intercourse. Sexual intercourse with the baby is possible only with force. When force is used, there will tearing of anterior and posterior vaginal wall. In her certificate, she has not mentioned the tear of anterior and posterior vaginal walls. During her re-examination she states that though, she has not mentioned in the medical certificate, she has made necessary entries in the accident register about the bite marks. During her cross-examination after reexamination, she states that there was no impediment for her to write other injuries in the column, ‘local general examination’. 14. P.W.8 was working as a President of Ponnampet, Grade-I Gramapanchayath. She has issued a residential certificate in respect of Prema. 15. P.W.9 is the Assistant Engineer. PW.9 has deposed that he has visited the scene of offence which is shown by the Woman Police Constable of Ponnampet Police Station. 16. P.W.10 is the Police Constable (P.C.No.39) of Ponnampet Police Station. He carried the FIR and delivered it to the learned Magistrate at 14:40 hrs. 17. P.W.11 is Sabeena Banu is Women Police Constable (W.P.C.No.209) of Ponnampet Police Station. She seized M.O.1-bed sheet from the spot. She prepared another mahazar on the same day between 5.00 p.m. to 5.40 p.m. Accused showed the place and produced one pant, one shirt and cloth i.e. M.Os.2 to 4 under Ex.P3 – mahazar. 18. P.W.12 is Police Constable No.292 of Shrimangala Police Station. He has delivered seven articles to the Forensic Science Laboratory, Mysore on 20.06.2006. 19. P.W.13 is the PSI of Ponnampet Police Station. He has received phone message from Gonicoppa Hospital regarding admission of a child alleged to have been raped. He visited the hospital and received medical intimation at 9.30 a.m. as per Ex.P5. He has delivered seven articles to the Forensic Science Laboratory, Mysore on 20.06.2006. 19. P.W.13 is the PSI of Ponnampet Police Station. He has received phone message from Gonicoppa Hospital regarding admission of a child alleged to have been raped. He visited the hospital and received medical intimation at 9.30 a.m. as per Ex.P5. He has recorded the statement of Prema in the presence of Medical Officer. He returned to the Police Station and registered a case in Crime No.63/2006 under Section 376, 323 and 506 of IPC. He has sent Ex.P10 – FIR to the Court. He arrested the accused and produced him before the Circle Inspector of Police. He has handed over further investigation to Circle Inspector of Police. 20. P.W.14 is the hearsay witness. He has deposed that Prema told him that when she entered the house, she saw accused committing rape against the child. 21. P.W.15 is the Medical Officer of CHC Gonikoppa. He has deposed that he has examined accused as per the requisition of Circle Inspector of Gonikoppa. He has issued certificate as per Ex.P12. There were abrasions on the genital organ of the accused. He was getting normal erection on stimulation and ejaculation. The abrasion found on the accused can be caused by forcible sexual activities. Ex.P.12(a) is his signature. During his cross-examination, he states that abrasion may be caused due to itching. Scratch in the penis can be caused only by sexual intercourse. 22. P.W.16 is Dr.Giridhar, ENT Surgeon, Madikeri. He has deposed that he has issued opinion on the basis of the opinion of the Orthopaedic Surgeon and Dentist. 23. P.W.17 is the Circle Inspector of Police of Gonikoppa Circle. He has deposed that he has recorded the statement of Woman Police Constable, Sabeena Banu. He has received Ex.P9 – sketch of the scene of offence. He has laid chargesheet against the accused. 24. P.W.18 was working as the Circle Inspector of Police during the year 2005-2006 at Gonikoppal Circle. He has deposed that he drew spot mahazar as per Ex.P2. He seized bed sheet from the spot. He has recorded further statement of the complainant. He has recorded the voluntary statement of accused. In pursuance of the voluntary statement of the accused, he has seized one pant and one shirt. He has prepared the rough sketch of the scene of offence. He sent accused to medical examination. He seized bed sheet from the spot. He has recorded further statement of the complainant. He has recorded the voluntary statement of accused. In pursuance of the voluntary statement of the accused, he has seized one pant and one shirt. He has prepared the rough sketch of the scene of offence. He sent accused to medical examination. He produced accused before the Court. He recorded the statement of Laxmi, Kum.Sannappa @ Priya, Swamy and Constable – Shashidhar. He further deposed that on 05.06.2006, he has received medical certificate of victim as per Ex.P6. He has deposed that on 08.06.2006, he has received wound certificate of P.W.1 – Prema. He has sent the seized articles to FSL, Bangalore. He has deposed that on 16.06.2006, he received medical certificate of the accused. He has handed over the further investigation to Circle Inspector of Police. 25. Statement of the accused under Section 313 was recorded. Accused has denied the allegation made against him. During the course of recording the statement, he has stated that when he was about to board the bus, he was arrested. He has also stated that he will lead defence evidence. 26. D.W.1 – Saroja is the mother of the accused. She has deposed that she know Halamma of Ponnampet. She is her distant relative. Since there was a quarrel between her husband and Halamma’s husband, they were not on talking terms. Accused was working as a cleaner in the bus. He was going in the morning and returning in the evening. 27. The finding of the trial Court is as under: In this case, PW1-Prema has turned hostile to the side of the prosecution, who is none other than the complainant. PW1-Prema has been deserted by her husband and she is having relationship with the accused. The material evidence PW7-Dr. Nalina who has examined the victim as well as the complainant has stated in her evidence that on 03.06.2006, the victim was brought to her by her mother Prema at 8 a.m. She has further deposed that bite marks were seen on the right cheek, left temporal and left post auricular area of the victim. No auxillary or public hairs present. Breast nodules present, minimally tender. However, it is unfortunate that corresponding injuries have not been mentioned in the injury certificate at Ex.P6. No auxillary or public hairs present. Breast nodules present, minimally tender. However, it is unfortunate that corresponding injuries have not been mentioned in the injury certificate at Ex.P6. The trial Court at para-39 of the judgment has observed that PW7-Dr.Nalina in her evidence has further stated thus:- External genitalia, high lateral thighs oedematous bloodstained with minimal blood stains discharge. Labia Majora Oedematous, severe tenderness present. Erythema present. Fourehettoperineal tear present 2 cm X 0.5 cm in the midline present. Purulent Discharge present. Fossanaviqularis with severe tenderness. Hymen perforated, bleeding present, admits little finger easily. Left elbow oedematous tender with restricted movements. This witness has not mentioned regarding presence of purulent discharge and Fossanaviqularis in Ex.P6 injury certificate. If these injuries are seen, it certainly shows that rape is committed. The trial Court at para-43 has mentioned that one question which needs to be answered is that, if physical force would have been used, in that case what could have happened. Because, the accused is comparatively well built and the victim is aged about 2½ years i.e., very tender age. So, if she was made to sleep and if accused lied on her and tried to penetrate then certainly severe injuries would have been found on the person of victim as well as on the penis of the accused. In this regard, though PW1-complainant has turned hostile, it has to be treated that she is telling falsehood. The trial Court relied on the contents of the complaint wherein it is stated that she had gone to coolie work. At about 6.30 p.m., she has returned home and her daughter was crying. Suddenly she went inside the house. The accused had removed his underwear and made the child victim to lie on his thigh and he was scrubbing the private part of the child. So far as assault is concerned, PW1-Prema has been examined by PW7-Dr. Nalina on the very day and accordingly, a Certificate has been issued. Hence, evidence of PW5-Laxmi stands fully corroborated. Regarding threatening by accused there is mention in PW5-Laxmi’s evidence. There is no reason as to why the trial Court should not believe her evidence. Therefore, the trial Court came to a conclusion that the accused is guilty of the offence alleged against him. The accused has committed rape on the victim, aged about 2½ years and he has assaulted PW1-Prema. There is no reason as to why the trial Court should not believe her evidence. Therefore, the trial Court came to a conclusion that the accused is guilty of the offence alleged against him. The accused has committed rape on the victim, aged about 2½ years and he has assaulted PW1-Prema. Though, the complainant has turned hostile, the evidence of PW5-Laxmi is believed. Therefore, the accused was convicted for the offence punishable under Sections 376(2)(f), 323 and 506(ii) of IPC. 28. The finding recorded with regard to the sentence is as under: No doubt, the accused is a young person aged 29 years and has a family to support. If that is the precise reason for which leniency has to be shown by the Court, then in none of the cases Court will be able to impose any sentence. Because, in all cases where heinous crimes are committed dependents have to undergo agony, mental pressure, financial loss etc. Therefore, the accused was sentenced to undergo Rigorous Imprisonment for Ten years and to pay fine of Rs.35,000/- for the offence punishable under Section 376(2)(f) of IPC. The accused was sentenced to undergo Simple Imprisonment for a period of Six months for the offence punishable under Section 323 of IPC and so far as the offence punishable under Section 506(ii) of IPC is concerned, he was sentenced to undergo Simple Imprisonment for a period of Six months. 29. I have heard the learned counsel for the appellant and the learned Additional State Public Prosecutor. I have perused the Trial Court records. 30. Learned counsel for the appellant/accused confines his arguments only on the legality of the sentence. 31. Learned counsel for the appellant submits as under: The accused has already undergone imprisonment for a period of Eight years Five months and Eight days. At the time of commission of the offence, the accused was aged about 28 years. There are special and adequate reasons to reduce the sentence of imprisonment of Ten years to the period of imprisonment already undergone. In this regard, he submits that the accused is not a habitual offender and he is a poor man. 32. He invites the attention of this Court to the Prison Manual, wherein it is provided that remission of 30 days can be given to the convicted offender for every 12 months. In this regard, he submits that the accused is not a habitual offender and he is a poor man. 32. He invites the attention of this Court to the Prison Manual, wherein it is provided that remission of 30 days can be given to the convicted offender for every 12 months. He further submits that conduct of the accused when he was undergoing imprisonment is satisfactory. 33. Learned counsel for the appellant/accused invites the attention of this Court to the various decisions of the Hon’ble Apex Court. 1. In the case of PHUL SINGH V/S STATE OF HARYANA reported in AIR 1980 SUPREMET COURT 249) “Head Note: (Penal Code (1860), Ss. 376 and 53 conviction for rape-Sentence-Accused aged 22 years and not a habitual offender Sentence reduced from four year R.I. to two years R.I. Ordinarily, rape is violation, with violence of the private person of a woman an outrage by all canons. In our conditions of escalating sex brutality a four year term for rape is not excessive. However, in the instant case, the accused was in his early twenties and he was not a habitual offender and signs of repentance were seen. The families of accused and victim being closely related, were also ready to take a lenient view of the situation. In the circumstances the sentence was reduced from 4 years to 2 years R.I. Sentencing efficacy in cases of lust loaded criminality cannot be simplistically assumed by award of long incarceration, for, often that remedy aggravates the malady. Punitive therapeutics must be more enlightened than the blind strategy of prison severity where all that happens is sex starvation, brutalisation, criminal companionship, versatile vices through bioenvironmental pollution dehumanised cell drill under ‘zoological’ conditions and emergence, at the time of release, of an embittered enemy of society and its values with an indelible stigma as convict stamped on him- a potentially good person ‘successfully’ processed into a hardened delinquent.” 2. In the case of GHASITA SAHU Vs. STATE OF MADHYA PRADESH reported in (2008) 3 SUPREME COURT CASES 52 wherein at para-8, it is observed as under:- “However, it is pointed out by the learned counsel that the quantity of ganja was less than the commercial quantity though more than the small quantity and that the accused has all through been behind the bars after his arrest and he has almost completed four years in jail. Considering that the accused is a middle-aged man and comes from a poor background as claimed by the counsel, we would chose to modify his punishment of five years to the sentence already undergone. We also reduce the amount of fine from Rs.20,000 to Rs.10,000 and in default of payment of fine the accused would undergo further period of rigorous imprisonment for six months. Barring this modification, the appeal is dismissed.” 3. In the case of MOHAMMAD GIASUDDIN Vs. STAE OF ANDHRA PRADESH reported in AIR 1977 SUPREME COURT 1926, wherein it is held thus. “Head Note: Criminal P.C. (1974), Section 248 (2) - Award of sentence - Need to personalize sentence from reformative angle, emphasized - New Code recognizes this approach - Penal Code (1860), S.420 - Appellant working in A.P. Secretariat found guilty under Section 420, of cheating by heartless deception of young men through politically influential friends and sentenced to 3 years R.I. - Appellant 28 years old with two University degrees - Parents, brother and sisters dependant on him-Sentence reduced on humanist grounds - Directions in tune with that approach issued by Supreme Court. Para-15- All that we have said upto now emphasizes the need on the part of the judges to see that sentencing ceases to be downgraded to Cinderella status. Para-16. The new Criminal P.C. 1973 incorporates some of these ideas and gives an opportunity in Section 248(2) to both parties to bring to the notice of the court facts and circumstances which will help personalize the sentence from a reformative angle. This Court, in Santa Singh (1976) 4 SCC 190 : ( AIR 1976 SC 2386 ) has emphasized how fundamental it is to put such provision to dynamic judicial use while dealing with the analogous provisions in S.235(2): This new provision in S.235(2) is in consonance with the modern trends in penology and sentencing procedures. There was no such provision in the old Code. It was realised that sentencing is an important stage in the process of administration of criminal justice - as important as the adjudication of guilt - and it should not be consigned to a subsidiary position as if it were a matter of not much consequence. It should be a matter of some anxiety to the Court to impose an appropriate punishment on the criminal and sentencing should, therefore, receive serious attention of the Court. It should be a matter of some anxiety to the Court to impose an appropriate punishment on the criminal and sentencing should, therefore, receive serious attention of the Court. Modern penology regards crime and criminal as equally material when the right sentence has to be picked out. It turns the focus not only on the crime, but also on the criminal and seeks to personalise the punishment so that the reformist component is as much operative as the deterrent element. It is necessary for this purpose that facts of a social and personal nature, sometimes altogether relevant if not injurious, at the stage of fixing the guilt, may have to be brought to the notice of the court when the actual sentence is determined. A proper sentence is the amalgam of many factors such as the nature of the offence, the circumstances - extenuating or aggravating - of the offence, the prior criminal record, if any, of the offender, the age of the offender, the record of the offender as to employment, the background of the offender with reference to education, home life sobriety and social adjustment, the emotional and mental condition of the offender, the prospects for the rehabilitation of the offender, the possibility of return of the offender to normal life in the community, the possibility of treatment or training of the offender, the possibility that the sentence may serve as a deterrent to crime by the offender or by others and the current community need, if any, for such a deterrent in respect to the particular type of offence. These factors have to be taken into account by the Court in deciding upon the appropriate sentence. The hearing contemplated by Section 235(2) is not confined merely to hearing oral submission but it is also intended to give an opportunity to the prosecution and the accused to place before the Court facts and material relating to various factors bearing on the question of sentence and if they are contested by either side, then to produce evidence for the purpose of establishing the same. Of course, care would have to be taken by the Court to see that this hearing on the question of sentence is not abused and turned into an instrument for unduly protracting the proceedings. The claim of due and proper hearing would have to be harmonized with the requirement of expeditious disposal of proceedings.” 34. Of course, care would have to be taken by the Court to see that this hearing on the question of sentence is not abused and turned into an instrument for unduly protracting the proceedings. The claim of due and proper hearing would have to be harmonized with the requirement of expeditious disposal of proceedings.” 34. He further invites the attention of this Court to the evidence of the complainant who has turned hostile to the side of the prosecution. She is the only eyewitness to the incident. There is ill-will between the accused and PW5, who is the sister of PW1-Prema. The other witnesses who have examined by the prosecution have turned hostile to the side of the prosecution. The trial Court mainly relied on the expert evidence namely PW6-Dr.Anil Davankar, Dental Surgeon and also PW7-Dr.Nalina, who examined the victim, has come to a conclusion that there was sexual assault on the victim. The only direct evidence that was available is PW1 who has turned hostile. He further submits that these are mitigating factors to reduce the sentence of imprisonment to the period of imprisonment that he has already undergone. 35. The case of the prosecution is that the accused has illicit relationship with PW1. PW1 has been deserted by her husband. He further submits that PW1-Prema and her husband were not in good terms with the accused. There is omission to mention in the wound certificate that there was bite marks present on the right cheek, left temporal and left post auricular area. There is positive evidence to the effect that the doctor has not mentioned about the bite injuries on the right cheek, left temporal and left post auricular area. 36. Without mentioning in the wound certificate, P.W.7 has deposed before the Court for the first time. Therefore, learned counsel for the appellant submits that there is omission in the evidence of PW.7. This is one of the mitigating circumstances. 37. Learned Additional State Public Prosecutor relies on the following rulings: 1. A CONVICT PRISONER IN THE CENTRAL PRISON, THIRUVANANTHAPURAM Vs. STATE OF KERALA reported in 1993 CRL.L.J.3242, wherein it has observed as under: “Scientific classification of prisoners must be made. State shall effectively implement segregation, keeping habitual offenders away from freshers, to avoid the possibility of hard core criminal turning jails to schools of crime. A CONVICT PRISONER IN THE CENTRAL PRISON, THIRUVANANTHAPURAM Vs. STATE OF KERALA reported in 1993 CRL.L.J.3242, wherein it has observed as under: “Scientific classification of prisoners must be made. State shall effectively implement segregation, keeping habitual offenders away from freshers, to avoid the possibility of hard core criminal turning jails to schools of crime. State will also take appropriate measures for creation of a fund, for victim care to which an appreciable part of prisoners’ earnings could be diverted. The State shall consider the feasibility of creating a work force, which can be useful and economical to it. Open jails and a work force go together. Vast human resources can be gainfully utilized. State may consider the advisability of avoiding short term imprisonment and simple imprisonment, wherever possible. Registry will make appropriate arrangements for providing a meeting place in the premises of the High Court, where prisoners can meet their counsel and give instructions by prior appointment. A desk in the Criminal Section for this purpose can be thought of. Sufficient provision will be made to segregate civil prisoners and military prisoners, from prisoners convicted of criminal charges. A rational parole policy must be evolved: parole is a salutary measure. But, a prisoner who invites incarceration by his conduct cannot expect the same freedom as free citizens. Blades for shaving, sterilized needles in Dispensaries and sufficient fans should be provided. Sanitary napkins which are not included in the clothing supplied to female prisoners should also be supplied. It must be remembered that congenial working environment alone can ensure a contended service. Reservation of a nominal percentage of jobs for convict prisoners of good behaviour can be an incentive and it would be consistent with the concept of rehabilitation. Educational and recreational facilities, within reasonable limits may be provided in prisons. Weekly or fortnightly discussions, availing of the good offices of religious or social organizations or enlightened citizens, can go a long way in reforming the convicts.” 2. In the case of Ram Lakhan Singh and others Vs. Educational and recreational facilities, within reasonable limits may be provided in prisons. Weekly or fortnightly discussions, availing of the good offices of religious or social organizations or enlightened citizens, can go a long way in reforming the convicts.” 2. In the case of Ram Lakhan Singh and others Vs. The State of Uttar Pradesh, reported in AIR 1977 SUPREME COURT 1936, wherein it is observed as under: “When the appreciation of the evidence against the accused by the Sessions Judge as well as the High Court is replete with infirmities affecting the very quality of appreciation in appeal under Art. 136 of the Constitution by the accused persons sentenced to death by both the above Courts for offence of murder, the Supreme Court will have to undertake for itself, in the interest of justice, a thorough examination of the evidence and the entire circumstances to satisfy itself about the guilt of the accused who have been awarded the extreme penalty under the law.” 3. In the case of BACHAN SINGH V/s STATE OF PUNJAB reported in AIR 1980 SUPREME COURT 898, wherein it has observed as under: “The procedure provided in Criminal P.C. for imposing capital punishment for murder and some other capital crimes under the penal code cannot, by any reckoning, be said to be unfair, unreasonable and unjust. Nor can it be said that this sentencing discretion, with which the courts are invested, amounts to delegation of its power of legislation by Parliament. Therefore, S.354(3) does not violate Arts.14, 19 and 21 of Constitution. AIR 1979 SC 964 and AIR 1979 SC 916 , Overruled. AIR 1935 Cal 591, Held no longer good law. Section 354(3) of the Code of Criminal Procedure, 1973, marks a significant shift in the legislative policy underlying the Code of 1898, as in force immediately before April 1, 1974, according to which both the alternative sentences of death or imprisonment for life provided for murder and for certain other capital offences under the Penal Code, were normal sentences. Now, according to this changed legislative policy which is patent on the face of S.354(3) the normal punishment for murder and six other capital offences under the Penal Code, is imprisonment for life (or imprisonment for a term of years) and death penalty is an exception. In this context S.235 (2) is also relevant. Now, according to this changed legislative policy which is patent on the face of S.354(3) the normal punishment for murder and six other capital offences under the Penal Code, is imprisonment for life (or imprisonment for a term of years) and death penalty is an exception. In this context S.235 (2) is also relevant. Although sub-section (2) of Section 235 does not contain a specific provision as to evidence and provides only for hearing of the accused as to sentence, yet it is implicit in this provision that if a request is made in that behalf by either the prosecution or the accused or by both, the Judge should give the party or parties concerned an opportunity of producing evidence or material relating to the various factors bearing on the question of sentence. As can be seen, S.235(2) provides for a bifurcated trial and specifically gives the accused person a right of pre-sentence hearing at which stage, he can bring on record material or evidence, which may not be strictly relevant to or connected with the particular crime under inquiry, but nevertheless, have, consistently with the policy underlined in Sec.354 (3), a bearing on the choice of sentence. The present legislative policy discernible from Sec.235(2) read with S.354(3) is that in fixing the degree of punishment or making the choice of sentence for various offences, including one under section 302, Penal Code, the Court should not confine its consideration “principally” or merely to the circumstances connected with the particular crime, but also give due consideration to the circumstances of the criminal. The Supreme Court should not venture to formulate rigid standards in an area in which the Legislature so warily treads. Only broad guidelines consistent with the policy indicated by the Legislature in S.354(3) can be laid down. From a reading of Ss.354(3) and 235(2) and other related provisions of the Code of 1973, it is quite clear that for making the choice of punishment or for ascertaining the existence or absence of “special reasons” in that context, the Court must pay due regard both to the crime and the criminal. What is the relative weight to be given to the aggravating and mitigating factors, depends on the facts and circumstances of the particular case. More often than not, these two aspects are so intertwined that it is difficult to give a separate treatment to each of them. What is the relative weight to be given to the aggravating and mitigating factors, depends on the facts and circumstances of the particular case. More often than not, these two aspects are so intertwined that it is difficult to give a separate treatment to each of them. This is so because ‘style is the man’. In many cases, the extremely cruel or beastly manner of the commission of murder is itself a demonstrated index of the depraved character of the perpetrator. That is why, it is not desirable to consider the circumstances of the crime and the circumstances of the criminal in two separate water-tight compartments. In a sense, to kill is to be cruel and therefore all murders are cruel. But such cruelty may vary in its degree of culpability. And it is only when the culpability assumes the proportion of extreme depravity that “special reasons” can legitimately be said to exist. There are numerous other circumstances justifying the passing of the lighter sentences; as there are countervailing circumstances of aggravation. It cannot be over-emphasized that the scope and concept of mitigating factors in the area of death penalty must receive a liberal and expansive construction by the courts in accord with the sentencing policy writ large in Section 354(3). Judges never be blood thirsty. Hanging of murderers has never been too good for them. Facts and figures albeit incomplete, furnished by the Union of India, in the instant case, show that in the past, Courts have inflicted the extreme penalty with extreme infrequency - a fact which attests to the caution and compassion which they have always brought to bear on the exercise of their sentencing discretion in so grave a matter. It is, therefore, imperative to voice the concern that courts, aided by the broad illustrative guidelines indicated, will discharge the onerous function with evermore scrupulous care and humane concern, directed along the highroad of legislative policy outlined in Section 354(3) viz., that for persons convicted of murder, life imprisonment is the rule and death sentence an exception. A real and abiding concern for the dignity of human life postulates resistance to taking a life through law’s instrumentality. That ought not to be done save in the rarest of rare cases when the alternative option is unquestionably fore closed.” 4. A real and abiding concern for the dignity of human life postulates resistance to taking a life through law’s instrumentality. That ought not to be done save in the rarest of rare cases when the alternative option is unquestionably fore closed.” 4. In the case of STATE V/s KAPTAN SINGH, reported in 2008 CRI L.J.1458 wherein it has observed as under: “Penal Code (45 of 1860), Ss 279, 304-AProbation of Offenders Act (20 of 1958) S.4- Causing death by negligence – Accused, driver of bus, allegedly crushed young boy under wheels - Accident was witnessed by some of passengers - photograph showing place where young boy was hit and position where bus stopped - Driver admitted that bus hit child - His explanation was at variance with his pleas in written statement - there was testimony of independent eye witness - No adverse inference can be drawn of not recording number of bus in daily diary - Accused is liable to be convicted and sentenced to undergo simple imprisonment for one month under S.279 and for period of three months for offence under S.304-A - Benefit of Probation of Offenders Act granted.” 5. In the case of MADHAV HAYAWADANRAO HOSKOT Vs. STATE OF MAHARASHTRA reported in AIR 1978 SUPEME COURT 1548, wherein paragraph Nos.7, 20 and 21 read as under: “7. Social defence is the criminological foundation of punishment. The trial judge has confused between correctional approach to prison treatment and nominal punishment verging on decriminalization of serious social offences. The first is basic, the second pathetic. That Court which ignores the grave injury to society implicit in economic crimes by the upperberth ‘mafia’ ill serves social justice. Soft sentencing justice is gross injustice where many innocents are the potential victims. It is altogether a different thing to insist on therapeutic treatment, hospital setting and correctional goals inside the prison (even punctuated by parole, opportunities for welfare work, meditational normalization and healthy self-expression), so that the convict may be humanized and, on release, rehabilitated as a safe citizen. This court has explained the correctional strategy of punishment in Giasuddin’s case (1978) 1 SCR 153: ( AIR 1977 SC 1926 ). Coddling is not correctional any more than torture is deterrent. This court has explained the correctional strategy of punishment in Giasuddin’s case (1978) 1 SCR 153: ( AIR 1977 SC 1926 ). Coddling is not correctional any more than torture is deterrent. While iatrogenic prison terms are bad because they dehumanize, it is functional failure and judicial pathology to hold out a benignly self-defeating non-sentence to deviants who endanger the morals and morale, the health and wealth of society. Xxxxx 20. It needs no argument to drive home this point, now that Art.39-A, a fundamental constitutional directive states: 39-A. Equal Justice and free legal aid. The State shall secure that the operation of the legal system promotes justice, on a basis of equal opportunity, and shall, in particular, provide free legal aid, by suitable legislation or schemes or in any other way, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities. (emphasis added) 21. This article is an interpretative tool for Art.21.” 38. Learned Additional State Public Prosecutor submits that judgment and conviction awarded by the trial Court is sound and proper and it does not call for interference. He further submits that imprisonment of Ten years is as per Section 376(2) (f) of IPC. 39. As stated earlier, the learned counsel for the appellant confines his arguments only on the legality of sentence. However, in the interest of justice and in order to satisfy myself about the guilt of accused, I have thoroughly examined the evidence of witnesses on record about the guilt of the accused who has been awarded the sentence of ten years. On careful analysis of the evidence of PWs.5-sister of the complainant and PWs.6 and 7 who are the Doctors expert witnesses, in my view, the finding recorded by the trial Court is sound and proper. 40. In the administration of criminal justice, Macaulay’s Indian Penal Code became the substantive criminal law of the land in the year 1860. Sir James Stephen’s Evidence Act was introduced in 1872. The code of Criminal Procedure became law in 1898. These legislations, mainly influenced by the then prevalent notions of criminal justice in England, have continued to be the fundamental basis of the administration of criminal justice in India. 41. The ideal was punitive societal reaction towards offenders. Sir James Stephen’s Evidence Act was introduced in 1872. The code of Criminal Procedure became law in 1898. These legislations, mainly influenced by the then prevalent notions of criminal justice in England, have continued to be the fundamental basis of the administration of criminal justice in India. 41. The ideal was punitive societal reaction towards offenders. The attributes of punishment which were considered desirable were (1) Uniformity (2) Certainty (3) Celerity and (4) Severity and, there was an attempt to make these the characteristics of the official legal system to deal with the law-breakers. This is fully reflected in the provisions of the Indian Penal Code of 1860, though the concept of Celerity was not the ideal in the Criminal Procedure Code as enforced in 1898. 42. The Indian Penal Code thus represents the crime oriented pattern of punishment and, the criminal Procedure Code of 1898 mainly aims at guilt finding. The dichotomy of criminal trial into guilt finding and sentencing was not fully reflected in the procedural law, as sentencing then simply meant fixing the case in the tariff of punishment. The procedure elaborated mainly the aspect of a fair trial of the accused. In finding out whether he is guilty of the offence alleged; it did not bring into focus the aspect of sentencing. 43. In Ram Narayan Vs. State of UP (1973)- 1-SCWR-675, the Supreme Court of India speaking on the aspect of sentence observed: “The next question is one of sentence which is always a matter of some difficulty. It generally poses a complex problem which requires a working compromise between the competing views based on reformative, deterrent and retributive theories of punishments. Though a large number of factors fall for consideration in determining the appropriate sentence, the broad object of punishment of an accused found guilty in progressive civilised societies is to impress on the guilty party that commission of crimes does not pay and that it is both against his individual interest and also against the larger interest of the society to which he belongs. The sentence to be appropriate should, therefore, be neither too harsh nor too lenient. 44. The sentence to be appropriate should, therefore, be neither too harsh nor too lenient. 44. It must be remembered that ordinary offences, with which the normal criminal law of the country deals, are committed by persons either under the pressure of provoked or unbalanced emotions, or as a result of adverse environments and circumstances, and so, while dealing with these criminals who in many cases deserve a sympathetic treatment and in a few cases, are more sinned against than sinners, criminal law treats punishment more as reformative or corrective than as a deterrent or punitive measure. 45. In any serious discussion of punishment the basic questions that arise would be (i) what is punishment and why; (ii) who should be punished and (iii) how much punishment should be inflicted. Unless a sentencer has bestowed his attention at least to some extent on these basis aspects, he cannot justify the trust reposed in him. Punishment involves mainly the following elements. “1) It must involve pain or other consequences normally considered unpleasant; 2) It must be for an offence against legal rules; 3) It must be imposed on a person found guilty for an offence; 4) It must be imposed and administered by an authority constituted by a legal system against which the offence is committed.” 46. The general practice of punishment by State is justified only if it has two objectives; reduction of crime and promotion of respect for criminal law - each being essential. Although it is a mistake to suppose that the practice can be justified without stressing the objective of reduction of crime, it is also a mistake to suppose that the reduction of crime can be treated as an adequate objective without reference to the promotion of respect of law; for, criminal law can work successfully only if the practice of punishing for its breach as well as the nature and extent of punishment is accepted by a very substantial part of the society; and it is reasonable to assume that such a majority would in general approve of punishments which are deserved, no more, no less. 47. Hammurabi’s Code (in about 1975 B.C.) of “an eye for an eye and a tooth for a tooth”, it has been urged and accepted by the general public that the criminal deserves to suffer. 48. 47. Hammurabi’s Code (in about 1975 B.C.) of “an eye for an eye and a tooth for a tooth”, it has been urged and accepted by the general public that the criminal deserves to suffer. 48. The theory, thus understood, asserts three things: first, that a person may be punished if and only if he has voluntarily done something morally wrong; secondly, that this punishment must in some way match or be equivalent to the wickedness of his offence; and thirdly, that the justification for punishing men under such conditions is that the return of suffering for moral evil voluntarily done is itself just or morally good. 49. Aristotle advocated this view of punishment to restore social equilibrium. ‘Treat like cases alike’ with its corollary ‘treat different cases differently’ has indeed a place as a Prima facie principle of fairness between offenders, but not as a something which warrants going beyond the requirements of the forward-looking aims of deterrence, prevention and reform to find some apt expressions of moral feeling. 50. The positive aspects requires that the offender should receive a sentence which adequately reflects the gravity of his offence in the view of society as represented by the court; in other words, the sentence must not be too short or lenient. The negative aspect requires that the offender should not receive a sentence which is heavier than that justified by the offence, the sentence must not be too long or excessive. 51. The primary objective was to fix a sentence proportionate to the offender’s culpability and the system has been loosely described as the tariff system. Crime shall not pay and the punishment meted out to the offender shall be such as to demonstrate as an example and a warning to the offender and to all other like-minded people to deter them from committing the same or similar offences. 52. The critics point out that this theory is based on the assumption that all crimes are committed after cool calculation of pleasure and pains, likely to be derived but that the facts of life belie it. They point out that the rate of murders do not actually come down in spite of the murderers being punished with extreme penalty of death. Besides deterrence fails in crimes of emotion and passion. Every solution has its own limitations. They point out that the rate of murders do not actually come down in spite of the murderers being punished with extreme penalty of death. Besides deterrence fails in crimes of emotion and passion. Every solution has its own limitations. All the same, we know by experience that certain factors would tend to increase crime, while others would diminish them. Condign punishment awarded in well merited cases would certainly tend to diminish crime and as such the theory continues to hold its sway in the sphere of sentencing. 53. In our country, several legislations like Probation of Offenders Act, the Juvenile Courts under the Children Act, Borstal Schools etc., have brought into forefront the reformative theory in sentencing in criminal cases. 54. The brief survey of the theories of punishment and the modern trends in penology would go to fix our gaze on the complexity of the task of sentencing. One cannot simply swallow the sophisticated view that the only purpose of sentencing is the rehabilitation of the individual offender. Deterrence through punishment, prevention through restraint and the gratification of the sentiment of denunciation by the community are also important goals of criminal law. There is no one reason why a person commits a crime; so no one type of punishment fits all criminals. What is punishment for one person may be of no effect to others. Some criminals are sensitive to pain, others to humiliation, others to confinement, and yet others may be require guidance and treatment for the results of punishment to be successful. 55. Sentences should have an understanding of each of the goals of punishment and methods of achieving them. They should also recognise the limitations of each theory, so that they may strive to invoke those methods in sentencing which will help achieve, not impede, the attainment of the desired goal. 56. The other aspect which I have to consider is whether the convicted offender was a casual criminal or a habitual criminal or a professional criminal or is a first offender, what was the conduct of the offender during the offence, status and age of the offender, mental condition of the offender. 57. In the Indian Penal Code, in each Section, the period of punishment for the offence committed by the offender is prescribed. 57. In the Indian Penal Code, in each Section, the period of punishment for the offence committed by the offender is prescribed. According to the tariff under the Indian Penal Code, length of sentence of imprisonment or the amount of fine is calculated. The punishment should fit the crime. The sentence in a particular case is required to reflect the different degrees of gravity. The process by which the secondary decision, the length of sentence, is reached involves three modes, such as determination of the general range for the category of the offence, preliminary placing of the offence within that range by reference to its gravity – its intrinsic seriousness, and the calculation of allowances for mitigating circumstances or the aggravating ones. This involves the judicial discretion in the sentencing process. If a person is convicted for the offence enumerated under the Indian Penal Code, there will be normal sentence, minimum sentence, maximum sentence and extreme penalty. The normal sentence for the offence of rape is seven years. If the offence is committed by an accused against a woman when she is below 12 years of age, he shall be punished with sentence for a term which shall not be less than ten years, which may also extend for life imprisonment and also liable for fine, provided that the Court may, for adequate or special reasons to be mentioned in the judgment, may impose sentence of imprisonment for a term less than ten years. Section 376 of the Indian Penal Code provides discretionary power to the Court to impose sentence for a term less than ten years, when the Court is able to record adequate and special reasons. So, the Legislature in their intent have provided judicial discretion in sentencing process to the offender. In this background, I intend to examine whether there are any grounds made out to reduce the severity of the punishment. 58. I have to examine the stringency of the rule, nature and seriousness of the offence while awarding sentence. In other words, I have to consider whether there is any mitigating factor to reduce the period of sentence. As stated earlier, the normal sentence prescribed for the offence punishable under Section 376 of the Indian Penal Code is seven years. 58. I have to examine the stringency of the rule, nature and seriousness of the offence while awarding sentence. In other words, I have to consider whether there is any mitigating factor to reduce the period of sentence. As stated earlier, the normal sentence prescribed for the offence punishable under Section 376 of the Indian Penal Code is seven years. Maximum punishment provided for the offence punishable under Section 376(2)(f) of the Indian Penal Code is rigorous imprisonment for a term which may not be less than ten years, which may extend for life imprisonment and also fine. In the instant case, the Trial Court has awarded sentence of ten years. 59. Learned counsel for the appellant though did not address arguments in respect of legality of the sentence, he has invited the attention of the Court to the evidence of witnesses, namely PW.1 – complainant, who has turned hostile to the side of the prosecution. PW.1 is cited as a eyewitness to the incident. It is also the case of the prosecution that she was having illicit relationship with the accused after her husband deserted her. The Trial Court mainly relied on the evidence of PW.5 – Lakshmi who has deposed to the effect that she returned home little early on that day. There is also positive evidence to the effect that PW.5 and her husband were not in good terms with the accused. PW.5 is a hearsay witness. PW.7-Doctor deposes that she had not mentioned the injuries of teeth bite, injuries on the right cheek, left temporal and left post auricular area in the certificate. PW.7-Doctor has stated this aspect while recording her evidence. The Trial Court has pointed out that there is improvement in the evidence of PW.7. All other witnesses have turned hostile to the side of the prosecution. 60. The Trial Court mainly relied on the evidence of PWs.5 and 7 to come to the conclusion that the accused is guilty of offence punishable under Section 376(2)(f) of the Indian Penal Code. The victim is a child aged about 2½ years. Though the mother of the victim is the complainant, she has turned hostile to the side of the prosecution. The learned Sessions Judge relied on the contents of the complaint wherein the complainant has stated that she had been to work and when she returned to house at 6.30 p.m., her daughter was crying. Though the mother of the victim is the complainant, she has turned hostile to the side of the prosecution. The learned Sessions Judge relied on the contents of the complaint wherein the complainant has stated that she had been to work and when she returned to house at 6.30 p.m., her daughter was crying. When she went inside, Rajesh had removed his underwear and made her daughter sit on his thigh and that private part of child and the accused were in contact. Thereby, the accused has committed sexual assault on the victim. Mainly, the Trial Court relied on the averments made in the complaint and evidence of PWs.5 and 7 to convict the accused. 61. In the instant case, though there is some improvement in the evidence of PW.7-Doctor, since the victim is aged 2½ years, it is not proper to brush aside the evidence of PW.7, who is an independent witness. The Trial Court mainly relied on the evidence of PW.7-Dr.Nalina and evidence of PW.5- Lakshmi to come to the conclusion that the accused is guilty of the offence alleged against him. The learned counsel for the appellant has confined his arguments to legality of the sentence. Therefore, the judgment of conviction passed by the Trial Court is maintained. 62. The next aspect which I have to consider is whether there is any special or adequate reason to reduce the sentence of imprisonment inflicted on the accused. As stated earlier, PW.1 – mother of the victim has turned hostile to the side of the prosecution. There is improvement in the evidence of PW.7-Dr.Nalina and there is ill-will between PW.5 and her husband with accused. The accused is a Driver by profession and he is not a habitual offender. He was aged 27 years at the time of incident. Keeping in view the reformative theory and also considering the facts and material placed on record, while maintaining the order of conviction, the period of sentence is reduced. The fine amount is already deposited. 63. Section 428 of the Code of Criminal Procedure provides for the setting off of the period of detention as an under-trial prisoner against the sentence of imprisonment imposed on him. The fine amount is already deposited. 63. Section 428 of the Code of Criminal Procedure provides for the setting off of the period of detention as an under-trial prisoner against the sentence of imprisonment imposed on him. This has been introduced so that it would go a long way to mitigate the evil, which the joint committee of Parliament has found as follows: “The Committee has noted the distressing fact that in many cases accused persons are kept in prison for very long period as under trial prisoners…. and that in many cases, the accused person is made to suffer jail life for a period out of all proportion to the gravity of the offence or even to the punishment provided in the statute” 64. The conditions for application of Section 428 of Code of Criminal Procedure are, i) The accused persons have been convicted and sentenced to imprisonment for a term; ii) That sentence is still running; iii) He has undergone detention as an under-trial prisoner for a period of time, before the date of such conviction. iv) The pre-trial detention must be in relation to investigation, inquiry or trial of the same case. 65. Section 428 of the Code of Criminal Procedure is absolute in its mandate. The record discloses that appellant/accused has undergone under-trial detention for a period of two years nine months and twenty seven days. The period of undertrial detention undergone by the appellant/accused is set-off against the sentence of imprisonment. The appellant/accused shall be set at liberty if he has served eight and half years of imprisonment and if he is not required to be detained in any other case. The Registry is directed to send a copy of this judgment to the Trial Court forthwith. 66. In view of the above discussion, I pass the following. ORDER i) This Criminal Appeal is allowed in part. ii) The judgment of conviction dated 30.03.2009 passed in S.C.No.58/2006 by the Sessions Judge, Kodagu, Madikeri, and Incharge Presiding Officer, Fast Track Court, Madikeri, is confirmed. iii) The Trial Court has imposed sentence of imprisonment of ten years. This is modified and sentence of imprisonment is reduced to 8 ½ years. iv) Intimate the Jail authorities accordingly.