Sec. 376 /506 of I.P.C. = Hymen intact - No external injuries - minor girl of 14 years studying 8th class - semen found on under wear and salavar - she deposed that he raped her - enough to bring the offence under sec. 376 but not under sec.376 /511 of I.P.C.- an attempt to rape - For reduction of sentence there is no strait jacket formula - in this case there are no ground to reduce the sentence - Appeal dismissed - High court order was confirmed =
whether the High Court
is right in coming to the conclusion that the appellant was guilty
under Section 376, IPC, for the offence of rape or
whether the
evidence on record in this case only made out an offence of attempt
to rape under Section 376, IPC, read with Section 511, IPC. =
RAPE or AN ATTEMPT TO RAPE
PW-15, the doctor who conducted the medical examination of the
prosecutrix on 31.01.2001, however, has stated that there was no
sign of injury on the prosecutrix and the hymen was found intact.
The High Court has considered this evidence and has held that the
non-rupture of hymen is not sufficient to dislodge the theory of
rape and has relied on the following passage from Modi in Medical
Jurisprudence and Toxicology (Twenty First Edition):
“Thus, to constitute the offence of rape it is not necessary that
there should be complete penetration of penis with emission of semen
and rupture of hymen. Partial penetration of the penis within the
Labia majora or the vulva or pudenda with or without emission of
semen or even an attempt at penetration is quite sufficient for the
purpose of the law. It is, therefore, quite possible to commit
legally the offence of rape without producing any injury to the
genital or leaving any seminal stains.”
In State of Rajasthan vs. Vinod Kumar (supra), cited on behalf
of the State, the accused-Vinod Kumar had been convicted by the
trial court under Section 376, IPC, and sentenced to seven years
imprisonment.
The High Court, however, reduced the sentence to
five years imprisonment without recording adequate and special
reasons for doing so.
This Court held that the High Court failed
to ensure compliance with the mandatory requirement of the proviso
to Section 376(1), IPC, to record adequate and special reasons.
This Court, after considering the earlier decisions of this Court,
held:
“23. Thus, the law on the issue can be summarised to the effect that
punishment should always be proportionate/ commensurate to the
gravity of offence. Religion, race, caste, economic or social status
of the accused or victim are not the relevant factors for determining
the quantum of punishment. The court has to decide the punishment
after considering all aggravating and mitigating factors and the
circumstances in which the crime has been committed. Conduct and
state of mind of the accused and age of the sexually assaulted victim
and the gravity of the criminal act are the factors of paramount
importance. The court must exercise its discretion in imposing the
punishment objectively considering the facts and circumstances of the
case.
24. The power under the proviso is not to be used indiscriminately
in a routine, casual and cavalier manner for the reason that an
exception clause requires strict interpretation. The legislature
introduced the imposition of minimum sentence by amendment in IPC
w.e.f. 25-12-1983, therefore, the courts are bound to bear in mind
the effect thereof. The court while exercising the discretion in the
exception clause has to record “exceptional reasons” for resorting to
the proviso. Recording of such reasons is sine qua non for granting
the extraordinary relief. What is adequate and special would depend
upon several factors and no straitjacket formula can be laid down.”
It is, therefore, clear that what is adequate and special would
depend upon several factors and on the facts of each case and no
straitjacket formula has been laid down by this Court.
The
legislature, however, requires the Court to record the adequate and
special reasons in any given case where the punishment less than
the minimum sentence of seven years is to be imposed.
The conduct
of the accused at the time of commission of the offence of rape,
age of the prosecutrix and the consequences of rape on the
prosecutrix are some of the relevant factors which the Court should
consider while considering the question of reducing the sentence to
less than the minimum sentence.
In the facts of the present case,
we find that the prosecutrix was a student of eighth class and was
about 14 years on 28.01.2001 and she was of a tender age.
She had
gone to the house of the appellant looking for her friend Babbo,
the sister of the appellant.
When she asked the appellant as to
where the sister of the accused was, he told her that she was in
the room and when she went inside the room, he followed her into
the room, bolted the room from inside and forcibly put her on the
cot.
The appellant then took out the salwar and the underwear of
the prosecutrix and raped her.
As a result of this incident, her
parents stopped her from going to the school and asked her to study
eighth class privately.
Considering the age of the prosecutrix,
the conduct of the appellant and the consequences of the rape on
the prosecutrix, we do not think that there are adequate and
special reasons in this case to reduce the sentence to less than
the minimum sentence under Section 376(1), IPC.
17. In the result, we do not find any merit in this appeal and we
accordingly dismiss the same.
2014 ( January - Vol - 1-D.B.) Judis.nic.in/ S.C./ file name =41156
Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL No. 133 of 2006
Parminder alias Ladka Pola .… Appellant
Versus
State of Delhi ….. Respondent
J U D G M E N T
A. K. PATNAIK, J.
This is an appeal by way of special leave under Article 136 of the
Constitution against the judgment dated 06.03.2003 of the Delhi High Court
in Criminal Appeal No. 696 of 2002 by which the conviction of the appellant
under Sections 376 and 506 of the Indian Penal Code, 1860 (for short ‘IPC’)
and the sentences imposed by the trial court on the appellant have been
maintained.
Facts:
2. The facts very briefly are that on 30.01.2001 at about 8.00 p.m., a
young girl of about fourteen years accompanied by her parents,
lodged the First Information Report (for short ‘the FIR’) in Police
Station, Khajoori Khas, Delhi, in which she stated as follows:
She
was a student of Higher Secondary School and residing with her
parents at House No.131, Gali No.12, Khajoori Khas, Delhi.
Opposite to their house was the house of Sardar Jagir Singh.
Babbo, daughter of Sardar Jagir Singh, was her friend and she used
to visit the house of Sardar Jagir Singh to meet Babbo.
On
28.01.2001 at about 8.30 p.m., the lights in the area went off and
as the generator at the house of Sardar Jagir Singh was on, the
prosecutrix went to meet Babbo.
She enquired from the appellant,
the son of Sardar Jagir Singh, as to whether Babbo was in the house
and the appellant told her that Babbo was inside the room.
When
she entered inside the room, the appellant followed her into the
room, bolted the room from inside and forcibly put her on the cot.
When she raised an alarm, the appellant slapped her.
He then took
out her salwar and underwear and raped her.
He also threatened her
with death if she narrated the incident to anybody.
Out of fear
and shame, she did not narrate the incident to anybody, but in the
evening of 30.01.2001 she narrated the incident to her mother.
3. On this statement of the girl (hereinafter referred to as ‘the
prosecutrix’), a case under Sections 376 and 506, IPC, was
registered on 30.01.2001.
The prosecutrix was medically examined
on the same night.
On examination of the X-rays report of the
prosecutrix, the doctor opined that her age was above fourteen
years but below sixteen years.
Her clothes and vaginal swab were
sent to the Central Forensic Science Laboratory (for short ‘CFSL’)
for analysis and as per the report from CFSL, human semen and blood
was detected on the underwear of the prosecutrix, but no semen was
detected in the vaginal swab.
After investigation, a charge-sheet
was filed against the appellant under Sections 342/354/376/506,
IPC.
Charges, however, were framed only under Sections 376 and
506, IPC, and as the appellant pleaded not guilty, the trial was
conducted.
At the trial, as many as fifteen witnesses were
examined on behalf of the prosecution including the prosecutrix.
After considering the evidence on record, the trial court convicted
the appellant under Sections 376 and 506, IPC.
For the offence
under Section 376, IPC, the trial court imposed the minimum
sentence of seven years rigorous imprisonment and a fine of
Rs.5,000/-, in default, rigorous imprisonment for one year and for
the offence under Section 506, IPC, the trial court imposed a
sentence of two years imprisonment and a fine of Rs.5,000/- and in
default, a rigorous imprisonment of six months. The trial court
further directed that the sentences were to run concurrently.
Aggrieved, the appellant filed Criminal Appeal No.696 of 2002 in
the High Court, but by the impugned judgment the High Court has
dismissed the appeal.
Contentions of the parties:
4. At the hearing of this appeal, Mr. Jana Kalyan Das, learned counsel
for the appellant, submitted that at most this is a case of attempt
to rape and not rape and hence the appellant should be held guilty
under Sections 376/511, IPC, and not under Section 376, IPC. He
referred to the evidence of the prosecutrix (PW-1) as well as the
medical evidence to support his submission that no offence of rape
as such has been committed of the prosecutrix.
He cited the
decision of this Court in Narender Kumar v. State (NCT of Delhi)
[(2012 (7) SCC 171] for the proposition that even in a case of
rape, the onus is always on the prosecution to prove affirmatively
each ingredient of the offence it seeks to establish and such onus
never shifts and it is no part of the duty of the defence to
explain as to how and why in a rape case the victim and other
witnesses have falsely implicated the accused. He submitted that
in the event this Court finds that the appellant is guilty of the
attempt to rape and not rape, he will be liable for half the
sentence provided for rape as will be clear from Section 511, IPC.
5. Mr. Das next submitted that the appellant while in jail custody
studied and passed Class 10 examination and has also appeared in
Class 12 examination as a candidate from Central Jail, Tihar,
Delhi, and has been released on bail after undergoing three years
and nine months of sentence and has thereafter got married on
16.08.2007. He further submitted that on 28.06.2008, a daughter
has been born to him who is studying in lower K.G. Class and on
13.06.2012, a second daughter has been born to him, who is on the
lap of her mother. The appellant has filed on 12.02.2013 an
affidavit stating all these facts. He submitted that as the
appellant is the sole bread earner of the family and has been doing
odd jobs in Delhi to earn a living for the family, his family will
suffer immensely if he is to undergo imprisonment for the remaining
period out of the seven years imprisonment imposed on him by the
court. He submitted that under the proviso to Section 376(1), IPC,
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 years. He submitted that on the facts and circumstances
stated above, this Court should reduce the sentence in this case
imposed on the appellant to the period already undergone so that
his family does not suffer.
In support of this submission, he
cited the decisions of this Court in State of Rajasthan vs. N.K.
The Accused [(2000) 5 SCC 30], Sukhwinder Singh vs. State of Punjab
[(2000) 9 SCC 204] and Baldev Singh and Others vs. State of Punjab
[(2011) 13 SCC 705]
6. In reply, learned counsel for the State, Mr. Rakesh Khanna
submitted that the prosecution has discharged its onus in
establishing beyond reasonable doubt that the appellant has
committed rape on the prosecutrix. He relied on the evidence of PW-
1 as well as the report of the CFSL to show that it was not a case
of only attempt to commit rape by the appellant. He submitted that
the High Court was, therefore, right in coming to the conclusion
that the appellant had committed rape on the prosecutrix.
7. On the question of sentence, Mr. Khanna submitted that this is a
case where an offence has been committed on a minor girl and it is
evident from the statement of prosecutrix (PW-1) that on account of
the rape, her parents stopped her from going to school and she had
to study 8th Class privately. He submitted that considering the
serious nature of the sexual offence committed by the appellant on
a minor girl, this is not a fit case in which this Court should
invoke the proviso to Section 376(1), IPC and reduce the minimum
sentence of seven years for the offence of rape as provided in
Section 376(1), IPC, to the period already undergone by the
appellant.
He cited the decisions of this Court in State of Madhya
Pradesh vs. Bablu Natt [(2009) 2 SCC 272] and State of Rajasthan
vs. Vinod Kumar [(2012) 6 SCC 770] in which this Court, after
considering the language used in the proviso to Section 376(1),
IPC, has set aside the orders of the High Court imposing sentences
less than the minimum sentence of seven years in cases of rape
under Section 376, IPC.
Findings of the Court:
8. The first question that we have to decide is
whether the High Court
is right in coming to the conclusion that the appellant was guilty
under Section 376, IPC, for the offence of rape or
whether the
evidence on record in this case only made out an offence of attempt
to rape under Section 376, IPC, read with Section 511, IPC.
We
find that the High Court while coming to the conclusion that the
appellant was guilty of the offence of rape under Section 376, IPC,
has considered the evidence of the prosecutrix (PW-1), the medical
evidence and the report of CFSL.
The prosecutrix has stated that
the appellant pushed her on the cot, put off her underwear and
salwar and forcibly raped her.
The salwar and underwear of the
prosecutrix, which she was wearing at the time of incident, were
sent to CFSL for analysis and after examination the CFSL had found
in its report dated 30.04.2001 that there was human semen and blood
on the underwear of the prosecutrix referred to in the report as
Exhibit 4(B).
Hence, there is corroboration of the testimony of
the prosecutrix that rape was committed on her.
9. PW-15, the doctor who conducted the medical examination of the
prosecutrix on 31.01.2001, however, has stated that there was no
sign of injury on the prosecutrix and the hymen was found intact.
The High Court has considered this evidence and has held that the
non-rupture of hymen is not sufficient to dislodge the theory of
rape and has relied on the following passage from Modi in Medical
Jurisprudence and Toxicology (Twenty First Edition):
“Thus, to constitute the offence of rape it is not necessary that
there should be complete penetration of penis with emission of semen
and rupture of hymen. Partial penetration of the penis within the
Labia majora or the vulva or pudenda with or without emission of
semen or even an attempt at penetration is quite sufficient for the
purpose of the law. It is, therefore, quite possible to commit
legally the offence of rape without producing any injury to the
genital or leaving any seminal stains.”
Section 375, IPC, defines the offence of ‘rape’ and the Explanation to
Section 375, IPC, states that penetration is sufficient to constitute the
sexual intercourse necessary to the offence of rape.
This Court has
accordingly held in Wahid Khan v. State of Madhya Pradesh [(2010) 2 SCC 9]
that even the slightest penetration is sufficient to make out an offence of
rape and depth of penetration is immaterial. In the aforesaid case, this
Court has relied on the very same passage from Modi in Medical
Jurisprudence and Toxicology (Twenty Second Edition) quoted above. In the
present case, even though the hymen of the prosecutrix was not ruptured the
High Court has held that there was penetration which has caused bleeding in
the private parts of the prosecutrix as would be evident from the fact that
the underwear of the prosecutrix was stained by blood. In our considered
opinion, the High Court was right in holding the appellant guilty of the
offence of rape and there is no merit in the contention of the learned
counsel for the appellant that there was only an attempt to rape and not
rape by the appellant.
10. The next question that we have to consider is whether the Court
should invoke the proviso to Section 376(1), IPC, and impose a
sentence of imprisonment for a term of less than seven years in
this case. The proviso to Section 376(1), IPC, as it stood prior
to its amendment in the year 2013 expressly states that the Court
may impose a sentence of imprisonment for a term of less than seven
years in an offence under Section 376(1), IPC, “for adequate and
special reasons to be mentioned in the judgment”. We may now
consider the cases cited by the learned counsel for the parties in
which this Court has considered whether or not the proviso should
be invoked to reduce the sentence to less than the minimum sentence
in cases of rape.
11. In State of Rajasthan vs. N.K. The Accused (supra), cited by the
learned counsel for the appellant, this Court found that the
accused had committed rape on the prosecutrix who was a married
woman. This Court found that that the incident was of the year
1993 and the accused was taken into custody by the police on
03.11.1993 and he was not allowed bail and during trial and during
hearing of the appeal, he remained in jail and it was only on
11.10.1995 when the High Court acquitted him of the charge that he
was released from jail. This Court held that though the accused
had remained in jail for a little less than two years and taking
into consideration the period of remission for which he would have
been entitled as well as the time which has elapsed from the date
of commission of the offence, the accused should not be sent back
to jail and reduced the sentence to the period already undergone by
him.
12. In Sukhwinder Singh vs. State of Punjab (supra), cited by the
learned counsel for the appellant, this Court found that the
prosecutrix was a consenting party to the act of sexual intercourse
and that she had willingly left her parents’ house to be with the
appellant but she was found to be “not more than sixteen years of
age” and on that account, the High Court had upheld the conviction
of the appellant. This Court held that as the prosecutrix had
since got married and she did not want the matter to be carried any
further and wanted to lead a happy and healthy married life with
her husband and had filed a compromise petition to that effect,
there were adequate and special reasons to reduce the sentence to
the period already undergone by the accused.
13. In Baldev Singh and Others vs. State of Punjab (supra), cited by
the learned counsel for the appellant, the accused was found guilty
of gang rape under Section 376(2)(g), IPC, for which the minimum
sentence was ten years rigorous imprisonment. The proviso to
Section 376(2), IPC, however, stated that the Court may, for
adequate and special reasons to be mentioned in the judgment,
impose a sentence of imprisonment of either description for a term
of less than ten years. This Court held on the facts of the case
that as the incident happened in the year 1997 and as the parties
have themselves entered into a compromise, the sentence be reduced
to the period already undergone in view of the proviso to Section
376(2)(g), IPC.
14. In State of Madhya Pradesh vs. Bablu Natt (supra), cited by the
learned counsel for the State, this Court, on the other hand, did
not find good and adequate reasons to reduce the sentence to less
than the minimum sentence of seven years under Section 376(1), IPC,
because of the fact that the prosecutrix was a minor and had been
subjected to rape and was compelled to live for several days with
the accused at Chhatarpur and set aside the judgment of the High
Court insofar as it imposed a sentence of less than seven years.
15. In State of Rajasthan vs. Vinod Kumar (supra), cited on behalf
of the State, the accused-Vinod Kumar had been convicted by the
trial court under Section 376, IPC, and sentenced to seven years
imprisonment.
The High Court, however, reduced the sentence to
five years imprisonment without recording adequate and special
reasons for doing so.
This Court held that the High Court failed
to ensure compliance with the mandatory requirement of the proviso
to Section 376(1), IPC, to record adequate and special reasons.
This Court, after considering the earlier decisions of this Court,
held:
“23. Thus, the law on the issue can be summarised to the effect that
punishment should always be proportionate/ commensurate to the
gravity of offence. Religion, race, caste, economic or social status
of the accused or victim are not the relevant factors for determining
the quantum of punishment. The court has to decide the punishment
after considering all aggravating and mitigating factors and the
circumstances in which the crime has been committed. Conduct and
state of mind of the accused and age of the sexually assaulted victim
and the gravity of the criminal act are the factors of paramount
importance. The court must exercise its discretion in imposing the
punishment objectively considering the facts and circumstances of the
case.
24. The power under the proviso is not to be used indiscriminately
in a routine, casual and cavalier manner for the reason that an
exception clause requires strict interpretation. The legislature
introduced the imposition of minimum sentence by amendment in IPC
w.e.f. 25-12-1983, therefore, the courts are bound to bear in mind
the effect thereof. The court while exercising the discretion in the
exception clause has to record “exceptional reasons” for resorting to
the proviso. Recording of such reasons is sine qua non for granting
the extraordinary relief. What is adequate and special would depend
upon several factors and no straitjacket formula can be laid down.”
16. It is, therefore, clear that what is adequate and special would
depend upon several factors and on the facts of each case and no
straitjacket formula has been laid down by this Court.
The
legislature, however, requires the Court to record the adequate and
special reasons in any given case where the punishment less than
the minimum sentence of seven years is to be imposed.
The conduct
of the accused at the time of commission of the offence of rape,
age of the prosecutrix and the consequences of rape on the
prosecutrix are some of the relevant factors which the Court should
consider while considering the question of reducing the sentence to
less than the minimum sentence.
In the facts of the present case,
we find that the prosecutrix was a student of eighth class and was
about 14 years on 28.01.2001 and she was of a tender age.
She had
gone to the house of the appellant looking for her friend Babbo,
the sister of the appellant.
When she asked the appellant as to
where the sister of the accused was, he told her that she was in
the room and when she went inside the room, he followed her into
the room, bolted the room from inside and forcibly put her on the
cot.
The appellant then took out the salwar and the underwear of
the prosecutrix and raped her.
As a result of this incident, her
parents stopped her from going to the school and asked her to study
eighth class privately.
Considering the age of the prosecutrix,
the conduct of the appellant and the consequences of the rape on
the prosecutrix, we do not think that there are adequate and
special reasons in this case to reduce the sentence to less than
the minimum sentence under Section 376(1), IPC.
17. In the result, we do not find any merit in this appeal and we
accordingly dismiss the same.
.……………………….J.
(A. K. Patnaik)
………………………..J.
(Gyan Sudha
Misra)
New Delhi,
January 16, 2014.
whether the High Court
is right in coming to the conclusion that the appellant was guilty
under Section 376, IPC, for the offence of rape or
whether the
evidence on record in this case only made out an offence of attempt
to rape under Section 376, IPC, read with Section 511, IPC. =
RAPE or AN ATTEMPT TO RAPE
PW-15, the doctor who conducted the medical examination of the
prosecutrix on 31.01.2001, however, has stated that there was no
sign of injury on the prosecutrix and the hymen was found intact.
The High Court has considered this evidence and has held that the
non-rupture of hymen is not sufficient to dislodge the theory of
rape and has relied on the following passage from Modi in Medical
Jurisprudence and Toxicology (Twenty First Edition):
“Thus, to constitute the offence of rape it is not necessary that
there should be complete penetration of penis with emission of semen
and rupture of hymen. Partial penetration of the penis within the
Labia majora or the vulva or pudenda with or without emission of
semen or even an attempt at penetration is quite sufficient for the
purpose of the law. It is, therefore, quite possible to commit
legally the offence of rape without producing any injury to the
genital or leaving any seminal stains.”
In State of Rajasthan vs. Vinod Kumar (supra), cited on behalf
of the State, the accused-Vinod Kumar had been convicted by the
trial court under Section 376, IPC, and sentenced to seven years
imprisonment.
The High Court, however, reduced the sentence to
five years imprisonment without recording adequate and special
reasons for doing so.
This Court held that the High Court failed
to ensure compliance with the mandatory requirement of the proviso
to Section 376(1), IPC, to record adequate and special reasons.
This Court, after considering the earlier decisions of this Court,
held:
“23. Thus, the law on the issue can be summarised to the effect that
punishment should always be proportionate/ commensurate to the
gravity of offence. Religion, race, caste, economic or social status
of the accused or victim are not the relevant factors for determining
the quantum of punishment. The court has to decide the punishment
after considering all aggravating and mitigating factors and the
circumstances in which the crime has been committed. Conduct and
state of mind of the accused and age of the sexually assaulted victim
and the gravity of the criminal act are the factors of paramount
importance. The court must exercise its discretion in imposing the
punishment objectively considering the facts and circumstances of the
case.
24. The power under the proviso is not to be used indiscriminately
in a routine, casual and cavalier manner for the reason that an
exception clause requires strict interpretation. The legislature
introduced the imposition of minimum sentence by amendment in IPC
w.e.f. 25-12-1983, therefore, the courts are bound to bear in mind
the effect thereof. The court while exercising the discretion in the
exception clause has to record “exceptional reasons” for resorting to
the proviso. Recording of such reasons is sine qua non for granting
the extraordinary relief. What is adequate and special would depend
upon several factors and no straitjacket formula can be laid down.”
Reduction of sentence
It is, therefore, clear that what is adequate and special would
depend upon several factors and on the facts of each case and no
straitjacket formula has been laid down by this Court.
The
legislature, however, requires the Court to record the adequate and
special reasons in any given case where the punishment less than
the minimum sentence of seven years is to be imposed.
The conduct
of the accused at the time of commission of the offence of rape,
age of the prosecutrix and the consequences of rape on the
prosecutrix are some of the relevant factors which the Court should
consider while considering the question of reducing the sentence to
less than the minimum sentence.
In the facts of the present case,
we find that the prosecutrix was a student of eighth class and was
about 14 years on 28.01.2001 and she was of a tender age.
She had
gone to the house of the appellant looking for her friend Babbo,
the sister of the appellant.
When she asked the appellant as to
where the sister of the accused was, he told her that she was in
the room and when she went inside the room, he followed her into
the room, bolted the room from inside and forcibly put her on the
cot.
The appellant then took out the salwar and the underwear of
the prosecutrix and raped her.
As a result of this incident, her
parents stopped her from going to the school and asked her to study
eighth class privately.
Considering the age of the prosecutrix,
the conduct of the appellant and the consequences of the rape on
the prosecutrix, we do not think that there are adequate and
special reasons in this case to reduce the sentence to less than
the minimum sentence under Section 376(1), IPC.
17. In the result, we do not find any merit in this appeal and we
accordingly dismiss the same.
2014 ( January - Vol - 1-D.B.) Judis.nic.in/ S.C./ file name =41156
Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL No. 133 of 2006
Parminder alias Ladka Pola .… Appellant
Versus
State of Delhi ….. Respondent
J U D G M E N T
A. K. PATNAIK, J.
This is an appeal by way of special leave under Article 136 of the
Constitution against the judgment dated 06.03.2003 of the Delhi High Court
in Criminal Appeal No. 696 of 2002 by which the conviction of the appellant
under Sections 376 and 506 of the Indian Penal Code, 1860 (for short ‘IPC’)
and the sentences imposed by the trial court on the appellant have been
maintained.
Facts:
2. The facts very briefly are that on 30.01.2001 at about 8.00 p.m., a
young girl of about fourteen years accompanied by her parents,
lodged the First Information Report (for short ‘the FIR’) in Police
Station, Khajoori Khas, Delhi, in which she stated as follows:
She
was a student of Higher Secondary School and residing with her
parents at House No.131, Gali No.12, Khajoori Khas, Delhi.
Opposite to their house was the house of Sardar Jagir Singh.
Babbo, daughter of Sardar Jagir Singh, was her friend and she used
to visit the house of Sardar Jagir Singh to meet Babbo.
On
28.01.2001 at about 8.30 p.m., the lights in the area went off and
as the generator at the house of Sardar Jagir Singh was on, the
prosecutrix went to meet Babbo.
She enquired from the appellant,
the son of Sardar Jagir Singh, as to whether Babbo was in the house
and the appellant told her that Babbo was inside the room.
When
she entered inside the room, the appellant followed her into the
room, bolted the room from inside and forcibly put her on the cot.
When she raised an alarm, the appellant slapped her.
He then took
out her salwar and underwear and raped her.
He also threatened her
with death if she narrated the incident to anybody.
Out of fear
and shame, she did not narrate the incident to anybody, but in the
evening of 30.01.2001 she narrated the incident to her mother.
3. On this statement of the girl (hereinafter referred to as ‘the
prosecutrix’), a case under Sections 376 and 506, IPC, was
registered on 30.01.2001.
The prosecutrix was medically examined
on the same night.
On examination of the X-rays report of the
prosecutrix, the doctor opined that her age was above fourteen
years but below sixteen years.
Her clothes and vaginal swab were
sent to the Central Forensic Science Laboratory (for short ‘CFSL’)
for analysis and as per the report from CFSL, human semen and blood
was detected on the underwear of the prosecutrix, but no semen was
detected in the vaginal swab.
After investigation, a charge-sheet
was filed against the appellant under Sections 342/354/376/506,
IPC.
Charges, however, were framed only under Sections 376 and
506, IPC, and as the appellant pleaded not guilty, the trial was
conducted.
At the trial, as many as fifteen witnesses were
examined on behalf of the prosecution including the prosecutrix.
After considering the evidence on record, the trial court convicted
the appellant under Sections 376 and 506, IPC.
For the offence
under Section 376, IPC, the trial court imposed the minimum
sentence of seven years rigorous imprisonment and a fine of
Rs.5,000/-, in default, rigorous imprisonment for one year and for
the offence under Section 506, IPC, the trial court imposed a
sentence of two years imprisonment and a fine of Rs.5,000/- and in
default, a rigorous imprisonment of six months. The trial court
further directed that the sentences were to run concurrently.
Aggrieved, the appellant filed Criminal Appeal No.696 of 2002 in
the High Court, but by the impugned judgment the High Court has
dismissed the appeal.
Contentions of the parties:
4. At the hearing of this appeal, Mr. Jana Kalyan Das, learned counsel
for the appellant, submitted that at most this is a case of attempt
to rape and not rape and hence the appellant should be held guilty
under Sections 376/511, IPC, and not under Section 376, IPC. He
referred to the evidence of the prosecutrix (PW-1) as well as the
medical evidence to support his submission that no offence of rape
as such has been committed of the prosecutrix.
He cited the
decision of this Court in Narender Kumar v. State (NCT of Delhi)
[(2012 (7) SCC 171] for the proposition that even in a case of
rape, the onus is always on the prosecution to prove affirmatively
each ingredient of the offence it seeks to establish and such onus
never shifts and it is no part of the duty of the defence to
explain as to how and why in a rape case the victim and other
witnesses have falsely implicated the accused. He submitted that
in the event this Court finds that the appellant is guilty of the
attempt to rape and not rape, he will be liable for half the
sentence provided for rape as will be clear from Section 511, IPC.
5. Mr. Das next submitted that the appellant while in jail custody
studied and passed Class 10 examination and has also appeared in
Class 12 examination as a candidate from Central Jail, Tihar,
Delhi, and has been released on bail after undergoing three years
and nine months of sentence and has thereafter got married on
16.08.2007. He further submitted that on 28.06.2008, a daughter
has been born to him who is studying in lower K.G. Class and on
13.06.2012, a second daughter has been born to him, who is on the
lap of her mother. The appellant has filed on 12.02.2013 an
affidavit stating all these facts. He submitted that as the
appellant is the sole bread earner of the family and has been doing
odd jobs in Delhi to earn a living for the family, his family will
suffer immensely if he is to undergo imprisonment for the remaining
period out of the seven years imprisonment imposed on him by the
court. He submitted that under the proviso to Section 376(1), IPC,
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 years. He submitted that on the facts and circumstances
stated above, this Court should reduce the sentence in this case
imposed on the appellant to the period already undergone so that
his family does not suffer.
In support of this submission, he
cited the decisions of this Court in State of Rajasthan vs. N.K.
The Accused [(2000) 5 SCC 30], Sukhwinder Singh vs. State of Punjab
[(2000) 9 SCC 204] and Baldev Singh and Others vs. State of Punjab
[(2011) 13 SCC 705]
6. In reply, learned counsel for the State, Mr. Rakesh Khanna
submitted that the prosecution has discharged its onus in
establishing beyond reasonable doubt that the appellant has
committed rape on the prosecutrix. He relied on the evidence of PW-
1 as well as the report of the CFSL to show that it was not a case
of only attempt to commit rape by the appellant. He submitted that
the High Court was, therefore, right in coming to the conclusion
that the appellant had committed rape on the prosecutrix.
7. On the question of sentence, Mr. Khanna submitted that this is a
case where an offence has been committed on a minor girl and it is
evident from the statement of prosecutrix (PW-1) that on account of
the rape, her parents stopped her from going to school and she had
to study 8th Class privately. He submitted that considering the
serious nature of the sexual offence committed by the appellant on
a minor girl, this is not a fit case in which this Court should
invoke the proviso to Section 376(1), IPC and reduce the minimum
sentence of seven years for the offence of rape as provided in
Section 376(1), IPC, to the period already undergone by the
appellant.
He cited the decisions of this Court in State of Madhya
Pradesh vs. Bablu Natt [(2009) 2 SCC 272] and State of Rajasthan
vs. Vinod Kumar [(2012) 6 SCC 770] in which this Court, after
considering the language used in the proviso to Section 376(1),
IPC, has set aside the orders of the High Court imposing sentences
less than the minimum sentence of seven years in cases of rape
under Section 376, IPC.
Findings of the Court:
8. The first question that we have to decide is
whether the High Court
is right in coming to the conclusion that the appellant was guilty
under Section 376, IPC, for the offence of rape or
whether the
evidence on record in this case only made out an offence of attempt
to rape under Section 376, IPC, read with Section 511, IPC.
We
find that the High Court while coming to the conclusion that the
appellant was guilty of the offence of rape under Section 376, IPC,
has considered the evidence of the prosecutrix (PW-1), the medical
evidence and the report of CFSL.
The prosecutrix has stated that
the appellant pushed her on the cot, put off her underwear and
salwar and forcibly raped her.
The salwar and underwear of the
prosecutrix, which she was wearing at the time of incident, were
sent to CFSL for analysis and after examination the CFSL had found
in its report dated 30.04.2001 that there was human semen and blood
on the underwear of the prosecutrix referred to in the report as
Exhibit 4(B).
Hence, there is corroboration of the testimony of
the prosecutrix that rape was committed on her.
9. PW-15, the doctor who conducted the medical examination of the
prosecutrix on 31.01.2001, however, has stated that there was no
sign of injury on the prosecutrix and the hymen was found intact.
The High Court has considered this evidence and has held that the
non-rupture of hymen is not sufficient to dislodge the theory of
rape and has relied on the following passage from Modi in Medical
Jurisprudence and Toxicology (Twenty First Edition):
“Thus, to constitute the offence of rape it is not necessary that
there should be complete penetration of penis with emission of semen
and rupture of hymen. Partial penetration of the penis within the
Labia majora or the vulva or pudenda with or without emission of
semen or even an attempt at penetration is quite sufficient for the
purpose of the law. It is, therefore, quite possible to commit
legally the offence of rape without producing any injury to the
genital or leaving any seminal stains.”
Section 375, IPC, defines the offence of ‘rape’ and the Explanation to
Section 375, IPC, states that penetration is sufficient to constitute the
sexual intercourse necessary to the offence of rape.
This Court has
accordingly held in Wahid Khan v. State of Madhya Pradesh [(2010) 2 SCC 9]
that even the slightest penetration is sufficient to make out an offence of
rape and depth of penetration is immaterial. In the aforesaid case, this
Court has relied on the very same passage from Modi in Medical
Jurisprudence and Toxicology (Twenty Second Edition) quoted above. In the
present case, even though the hymen of the prosecutrix was not ruptured the
High Court has held that there was penetration which has caused bleeding in
the private parts of the prosecutrix as would be evident from the fact that
the underwear of the prosecutrix was stained by blood. In our considered
opinion, the High Court was right in holding the appellant guilty of the
offence of rape and there is no merit in the contention of the learned
counsel for the appellant that there was only an attempt to rape and not
rape by the appellant.
10. The next question that we have to consider is whether the Court
should invoke the proviso to Section 376(1), IPC, and impose a
sentence of imprisonment for a term of less than seven years in
this case. The proviso to Section 376(1), IPC, as it stood prior
to its amendment in the year 2013 expressly states that the Court
may impose a sentence of imprisonment for a term of less than seven
years in an offence under Section 376(1), IPC, “for adequate and
special reasons to be mentioned in the judgment”. We may now
consider the cases cited by the learned counsel for the parties in
which this Court has considered whether or not the proviso should
be invoked to reduce the sentence to less than the minimum sentence
in cases of rape.
11. In State of Rajasthan vs. N.K. The Accused (supra), cited by the
learned counsel for the appellant, this Court found that the
accused had committed rape on the prosecutrix who was a married
woman. This Court found that that the incident was of the year
1993 and the accused was taken into custody by the police on
03.11.1993 and he was not allowed bail and during trial and during
hearing of the appeal, he remained in jail and it was only on
11.10.1995 when the High Court acquitted him of the charge that he
was released from jail. This Court held that though the accused
had remained in jail for a little less than two years and taking
into consideration the period of remission for which he would have
been entitled as well as the time which has elapsed from the date
of commission of the offence, the accused should not be sent back
to jail and reduced the sentence to the period already undergone by
him.
12. In Sukhwinder Singh vs. State of Punjab (supra), cited by the
learned counsel for the appellant, this Court found that the
prosecutrix was a consenting party to the act of sexual intercourse
and that she had willingly left her parents’ house to be with the
appellant but she was found to be “not more than sixteen years of
age” and on that account, the High Court had upheld the conviction
of the appellant. This Court held that as the prosecutrix had
since got married and she did not want the matter to be carried any
further and wanted to lead a happy and healthy married life with
her husband and had filed a compromise petition to that effect,
there were adequate and special reasons to reduce the sentence to
the period already undergone by the accused.
13. In Baldev Singh and Others vs. State of Punjab (supra), cited by
the learned counsel for the appellant, the accused was found guilty
of gang rape under Section 376(2)(g), IPC, for which the minimum
sentence was ten years rigorous imprisonment. The proviso to
Section 376(2), IPC, however, stated that the Court may, for
adequate and special reasons to be mentioned in the judgment,
impose a sentence of imprisonment of either description for a term
of less than ten years. This Court held on the facts of the case
that as the incident happened in the year 1997 and as the parties
have themselves entered into a compromise, the sentence be reduced
to the period already undergone in view of the proviso to Section
376(2)(g), IPC.
14. In State of Madhya Pradesh vs. Bablu Natt (supra), cited by the
learned counsel for the State, this Court, on the other hand, did
not find good and adequate reasons to reduce the sentence to less
than the minimum sentence of seven years under Section 376(1), IPC,
because of the fact that the prosecutrix was a minor and had been
subjected to rape and was compelled to live for several days with
the accused at Chhatarpur and set aside the judgment of the High
Court insofar as it imposed a sentence of less than seven years.
15. In State of Rajasthan vs. Vinod Kumar (supra), cited on behalf
of the State, the accused-Vinod Kumar had been convicted by the
trial court under Section 376, IPC, and sentenced to seven years
imprisonment.
The High Court, however, reduced the sentence to
five years imprisonment without recording adequate and special
reasons for doing so.
This Court held that the High Court failed
to ensure compliance with the mandatory requirement of the proviso
to Section 376(1), IPC, to record adequate and special reasons.
This Court, after considering the earlier decisions of this Court,
held:
“23. Thus, the law on the issue can be summarised to the effect that
punishment should always be proportionate/ commensurate to the
gravity of offence. Religion, race, caste, economic or social status
of the accused or victim are not the relevant factors for determining
the quantum of punishment. The court has to decide the punishment
after considering all aggravating and mitigating factors and the
circumstances in which the crime has been committed. Conduct and
state of mind of the accused and age of the sexually assaulted victim
and the gravity of the criminal act are the factors of paramount
importance. The court must exercise its discretion in imposing the
punishment objectively considering the facts and circumstances of the
case.
24. The power under the proviso is not to be used indiscriminately
in a routine, casual and cavalier manner for the reason that an
exception clause requires strict interpretation. The legislature
introduced the imposition of minimum sentence by amendment in IPC
w.e.f. 25-12-1983, therefore, the courts are bound to bear in mind
the effect thereof. The court while exercising the discretion in the
exception clause has to record “exceptional reasons” for resorting to
the proviso. Recording of such reasons is sine qua non for granting
the extraordinary relief. What is adequate and special would depend
upon several factors and no straitjacket formula can be laid down.”
16. It is, therefore, clear that what is adequate and special would
depend upon several factors and on the facts of each case and no
straitjacket formula has been laid down by this Court.
The
legislature, however, requires the Court to record the adequate and
special reasons in any given case where the punishment less than
the minimum sentence of seven years is to be imposed.
The conduct
of the accused at the time of commission of the offence of rape,
age of the prosecutrix and the consequences of rape on the
prosecutrix are some of the relevant factors which the Court should
consider while considering the question of reducing the sentence to
less than the minimum sentence.
In the facts of the present case,
we find that the prosecutrix was a student of eighth class and was
about 14 years on 28.01.2001 and she was of a tender age.
She had
gone to the house of the appellant looking for her friend Babbo,
the sister of the appellant.
When she asked the appellant as to
where the sister of the accused was, he told her that she was in
the room and when she went inside the room, he followed her into
the room, bolted the room from inside and forcibly put her on the
cot.
The appellant then took out the salwar and the underwear of
the prosecutrix and raped her.
As a result of this incident, her
parents stopped her from going to the school and asked her to study
eighth class privately.
Considering the age of the prosecutrix,
the conduct of the appellant and the consequences of the rape on
the prosecutrix, we do not think that there are adequate and
special reasons in this case to reduce the sentence to less than
the minimum sentence under Section 376(1), IPC.
17. In the result, we do not find any merit in this appeal and we
accordingly dismiss the same.
.……………………….J.
(A. K. Patnaik)
………………………..J.
(Gyan Sudha
Misra)
New Delhi,
January 16, 2014.
