Full Judgment Text
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CASE NO.:
Appeal (crl.) 263 of 2006
PETITIONER:
Dinesh @ Buddha
RESPONDENT:
State of Rajasthan
DATE OF JUDGMENT: 28/02/2006
BENCH:
ARIJIT PASAYAT & S.H. KAPADIA
JUDGMENT:
J U D G M E N T
(Arising Out of S.L.P (Crl.) No. 5753 of 2005)
ARIJIT PASAYAT, J.
Leave granted.
An eight years old girl was sexually ravished by the
appellant is what was alleged and for that the appellant faced
trial. The victim suffered ignominy on 5.2.1998. The appellant
has been found guilty of offence punishable under Section
376(2) of the Indian Penal Code, 1860 (in short the ’IPC’) read
with Section 3(2)(v) of the Scheduled Castes and the
Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short
the ’Atrocities Act’). The appellant was directed to undergo
imprisonment for life and to pay a fine of Rs. 1,000/- and the
State was directed to pay a compensation of Rs.50,000/- to
the victim.
Background facts are essentially as follows:
On 5.2.1998 the victim had gone to witness a marriage
procession in the night. When she was coming back to her
house in the night at about 12 O’ clock the accused sexually
assaulted her. She was threatened that if she disclosed about
the incident to anybody, she would be killed. Suffering from
the acute pain the victim told her sister, mother and
grandmother about the incident. The matter was reported to
the police. The accused person was arrested; medical tests
were conducted both in respect of the accused and the victim,
and after completion of investigation charge sheet was filed.
The Trial Court found the accused guilty of the offences
charged under Section 376(2) IPC and Section 3(2)(v) of the
Atrocities Act and sentenced him. The appeal before the
Rajasthan High Court, Jaipur Bench, did not bring any relief
to the accused.
In support of the appeal, learned counsel for the
appellant submitted that the evidence is not credible and
cogent. There are many inconsistencies in the evidence, more
particularly, of the victim (PW-8). This is not a case where life
imprisonment could have been awarded. In any event there is
no material to bring in application of Section 3(2)(v) of the
Atrocities Act. It is further submitted that the appellant
belongs to the lowest economic strata of society who could not
even afford to engage a lawyer at any stage. Even during trial
and before the High Court, lawyers were engaged at State’s
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cost. The young age of the accused should also be taken into
consideration.
In response, learned counsel for the State submitted that
though Section 3(2)(v) of the Atrocities Act may not be
applicable, but imposition of life sentence is also permissible
in a case covered under Section 376(2)(f) IPC. It is also
submitted that the compensation of Rs.50,000/- directed to
be paid by the State, should be set aside.
Sexual violence apart from being a dehumanizing act is
an unlawful intrusion on the right of privacy and sanctity of a
female. It is a serious blow to her supreme honour and
offends her self-esteem and dignity \026 it degrades and
humiliates the victim and where the victim is a helpless
innocent child or a minor, it leaves behind a traumatic
experience. A rapist not only causes physical injuries but more
indelibly leaves a scar on the most cherished possession of a
woman i.e. her dignity, honour, reputation and not the least
her chastity. Rape is not only a crime against the person of a
woman, it is a crime against the entire society. It destroys, as
noted by this Court in Shri Bodhisattwa Gautam v. Miss
Subhra Chakraborty (AIR 1996 SC 922), the entire psychology
of a woman and pushes her into deep emotional crisis. It is a
crime against basic human rights, and is also violative of the
victim’s most cherished of the Fundamental Rights, namely,
the Right to Life contained in Article 21 of the Constitution of
India, 1950 (in short the ’Constitution’) The Courts are,
therefore, expected to deal with cases of sexual crime against
women with utmost sensitivity. Such cases need to be dealt
with sternly and severely. A socially sensitized judge, in our
opinion, is a better statutory armour in cases of crime against
women than long clauses of penal provisions, containing
complex exceptions and provisos.
We do not propose to mention name of the victim. Section
228-A of IPC makes disclosure of identity of victim of certain
offences punishable. Printing or publishing name of any
matter which may make known the identity of any person
against whom an offence under Sections 376, 376-A, 376-B,
376-C or 376-D is alleged or found to have been committed
can be punished. True it is, the restriction, does not relate to
printing or publication of judgment by High Court or Supreme
Court. But keeping in view the social object of preventing
social victimization or ostracism of the victim of a sexual
offence for which Section 228-A has been enacted, it would be
appropriate that in the judgments, be it of this Court, High
Court or lower Court, the name of the victim should not be
indicated. We have chosen to describe her as ’victim’ in the
judgment. (See State of Karnataka v. Puttaraja (2003 (8)
Supreme 364).
The offence of rape occurs in Chapter XVI of IPC. It is an
offence affecting the human body. In that Chapter, there is a
separate heading for "Sexual offences", which encompass
Sections 375, 376, 376A, 376B, 376C and 376D I.P.C. "Rape"
is defined in Section 375 I.P.C. Sections 375 and 376 I.P.C.
have been substantially changed by Criminal Law
(Amendment) Act, 1983, and several new sections were
introduced by the new Act, i.e. 376A, 376B, 376C and 376D.
The fast sweeping changes introduced reflect the legislative
intent to curb with iron hand, the offence of rape which affects
the dignity of a woman. The offence of rape in its simplest term
is ’the ravishment of a woman, without her consent, by force,
fear or fraud’, or as ’the carnal knowledge of a woman by force
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against her will’. ’Rape or Raptus’ is when a man hath carnal
knowledge of a woman by force and against her will (Co.Litt.
123 b); or, as expressed more fully, ’rape is the carnal
knowledge of any woman, above the age of particular years,
against her will; or of a woman child, under that age, with or
against her will’. (Hale P.C. 628) The essential words in an
indictment for rape are rapuit and carnaliter cognovit; but
carnaliter cognovit, nor any other circumlocution without the
word rapuit, are not sufficient in a legal sense to express rape:
(1 Hen. 6, 1a, 9 Edw. 4, 26 a (Hale P.C.628). In the crime of
rape, ’carnal knowledge’ means the penetration to any the
slightest degree of the male organ of generation (Stephens
Criminal Law, 9th Ed., p.262). In "Encyclopedia of Crime and
Justice" (Volume 4, page 1356), it is stated "......even slight
penetration is sufficient and emission is unnecessary". In
Halsburys’ Statutes of England and Wales (Fourth Edition)
Volume 12, it is stated that even the slightest degree of
penetration is sufficient to prove sexual intercourse. It is
violation, with violence, of the private person of a woman, an
outrage by all means. By the very nature of the offence it is an
obnoxious act of the highest order.
The physical scar may heal up, but the mental scar will
always remain. When a woman is ravished, what is inflicted is
not merely physical injury but the deep sense of some
deathless shame. An accused cannot cling to a fossil formula
and insist on corroborative evidence, even if taken as a whole,
the case spoken to by the victim strikes a judicial mind as
probable. Judicial response to human rights cannot be
blunted by legal jugglery.
It is to be noted that in sub-section(2) of Section 376
I.P.C. more stringent punishment can be awarded taking into
account the special features indicated in the said sub-section.
The present case is covered by Section 376(2)(f) IPC i.e. when
rape is committed on a woman when she is under 12 years of
age. Admittedly, in the case at hand the victim was 8 years of
age at the time of commission of offence.
In the Indian Setting refusal to act on the testimony of
the victim of sexual assault in the absence of corroboration as
a rule, is adding insult to injury. A girl or a woman in the
tradition bound non-permissive society of India would be
extremely reluctant even to admit that any incident which is
likely to reflect on her chastity had ever occurred. She would
be conscious of the danger of being ostracized by the society
and when in the face of these factors the crime is brought to
light, there is inbuilt assurance that the charge is genuine
rather than fabricated. Just as a witness who has sustained
an injury, which is not shown or believed to be self-inflicted, is
the best witness in the sense that he is least likely to
exculpate the real offender, the evidence of a victim of sex
offence is entitled to great weight, absence of corroboration
notwithstanding. A woman or a girl who is raped is not an
accomplice. Corroboration is not the sine qua non for
conviction in a rape case. The observations of Vivian Bose, J.
in Rameshwar v. The State of Rajasthan (AIR 1952 SC 54)
were:
"The rule, which according to the cases
has hardened into one of law, is not that
corroboration is essential before there can be a
conviction but that the necessity of
corroboration, as a matter of prudence, except
where the circumstances make it safe to
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dispense with it, must be present to the mind
of the judge...".
The measure of punishment in a case of rape cannot
depend upon the social status of the victim or the accused. It
must depend upon the conduct of the accused, the state and
age of the sexually assaulted female and the gravity of the
criminal act. Crimes of violence upon women need to be
severely dealt with. The socio-economic status, religion, race,
caste or creed of the accused or the victim are irrelevant
considerations in sentencing policy. Protection of society and
deterring the criminal is the avowed object of law and that is
required to be achieved by imposing an appropriate sentence.
The sentencing Courts are expected to consider all relevant
facts and circumstances bearing on the question of sentence
and proceed to impose a sentence commensurate with the
gravity of the offence. Courts must hear the loud cry for justice
by the society in cases of the heinous crime of rape on
innocent helpless girls of tender years, as in this case, and
respond by imposition of proper sentence. Public abhorrence
of the crime needs reflection through imposition of appropriate
sentence by the Court. There are no extenuating or mitigating
circumstances available on the record which may justify
imposition of any sentence less than the prescribed minimum
on the respondent. To show mercy in the case of such a
heinous crime would be a travesty of justice and the plea for
leniency is wholly misplaced.
The legislative mandate to impose a sentence, for the
offence of rape on a girl under 12 years of age, for a term
which shall not be less than 10 years, but which may extend
to life and also to fine reflects the intent of stringency in
sentence. The proviso to Section 376(2) IPC, of course, lays
down that the court may, for adequate and special reasons to
be mentioned in the judgment, impose sentence of
imprisonment of either description for a term of less than 10
years. Thus, the normal sentence in a case where rape is
committed on a child below 12 years of age, is not less than 10
years’ RI, though in exceptional cases "for special and
adequate reasons" sentence of less than 10 years’ RI can also
be awarded. It is a fundamental rule of construction that a
proviso must be considered with relation to the principal
matter to which it stands as a proviso particularly in such like
penal provisions. The courts are obliged to respect the
legislative mandate in the matter of awarding of sentence in all
such cases. Recourse to the proviso can be had only for
"special and adequate reasons" and not in a casual manner.
Whether there exist any "special and adequate reasons" would
depend upon a variety of factors and the peculiar facts and
circumstances of each case. No hard and fast rule can be laid
down in that behalf of universal application.
At this juncture it is necessary to take note of Section 3
of the Atrocities Act. As the Preamble to the Act provides ’the
Act has been enacted to prevent the commission of offences of
atrocities against the members of the Scheduled Castes and
Scheduled Tribes. The expression ’atrocities’ is defined in
Section 2 of the Atrocities Act to mean an offence punishable
under Section 3. The said provision so far relevant reads as
follows:
"3(2)(v): Punishments for offences of atrocities \026
(2) Whoever, not being a member of a
Scheduled Caste or a Scheduled Tribe, -
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xxx xxx xxx
(v) commits any offence under the
Indian Penal Code punishable with
imprisonment for a term of ten years
or more against a person or property
on the ground that such person is a
member of a Scheduled Caste or a
Scheduled Tribe or such property
belongs to such member, shall be
punishable with imprisonment for
life and with fine;
xxx xxx xxx"
Sine qua non for application of Section 3(2)(v) is that an
offence must have been committed against a person on the
ground that such person is a member of Scheduled Castes
and Scheduled Tribes. In the instant case no evidence has
been led to establish this requirement. It is not case of the
prosecution that the rape was committed on the victim since
she was a member of Scheduled Caste. In the absence of
evidence to that effect, Section 3(2)(v) has no application. Had
Section 3(2)(v) of the Atrocities Act been applicable then by
operation of law, the sentence would have been imprisonment
for life and fine.
In view of the finding that Section 3(2)(v) of the Atrocities
Act is not applicable, the sentence provided in Section 376(2)(f)
IPC does not per se become life sentence. Though learned
counsel for the State submitted that even in a case covered
under Section 376(2)(f) IPC, imprisonment for life can be
awarded, it is to be noted that minimum sentence of 10 years
has been statutorily provided and considering the attendant
circumstances the imprisonment for life in a given case is
permissible. Neither the Trial Court nor the High Court has
indicated any such factor. Only by applying Section 3(2)(v) of
the Atrocities Act the life sentence was awarded. Therefore,
the sentence is reduced to 10 years. The other question is
legality of the compensation awarded. Since the State has not
challenged the award of compensation, it is not open to it to
question the legality of the award in the present appeal filed by
the accused. Therefore, State’s challenge to the legality
and/or quantum of compensation awarded is without merit.
The amount shall be paid to the victim if not already paid
within a period of eight weeks.
With the modification of sentence as abovementioned, the
appeal is dismissed.