Full Judgment Text
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CASE NO.:
Appeal (crl.) 1332 of 1999
PETITIONER:
KAMAL KISHORE
Vs.
RESPONDENT:
STATE OF HIMACHAL PRADESH
DATE OF JUDGMENT: 25/04/2000
BENCH:
K. T. THOMAS, DORAISWAMY RAJU & S.N. VARIAVA
JUDGMENT:
Thomas J.
L...I...T.......T.......T.......T.......T.......T.......T..J
The victim of a rape had just crossed single digit in
her age. So tender was that lass when she was ravished.
But the damage caused to her genitalia was woeful. The girl
narrated the story before Ms. Kiran Agarwal, Sessions
Judge, Una (Himachal Pradesh) who tried the case, but the
story told by her did not impress the Sessions Judge and
hence her testimony was jettisoned and the man who was
arraigned as the rapist exonerated. However, a Division
Bench of the High Court of Himachal Pradesh dissented from
the said verdict and convicted him under Section 376 of the
Indian Penal Code. Nonetheless, the Division Bench was not
disposed to award the minimum sentence prescribed by law for
the offence on the premise that the accused who was twenty
five "might have settled in life." So the High Court
directed him to undergo rigorous imprisonment for three
years and to pay a fine of Rupees ten thousand.
The verdict of the High Court did not satisfy both sides
- the accused and the State of Himachal Pradesh. The former
because of the reversal of the order of acquittal and the
latter because of the inadequacy of the sentence. So both
sides filed separate appeals by special leave. We heard
both appeals together.
The case put forward against the accused can be
summarised in the following lines: -
Shishna Devi (PW2) is the eldest of the three children
of Sher Singh and his wife Kunta Devi. During the year of
occurrence Sheshna Devi was studying in the 4th class.
Accused Kamal Kishore was running a flour mill located
adjacent to his house. The incident happened on 21.5.1989.
Shishna Devi after taking her evening meals proceeded to the
house of her aunt, but on the way she stepped into the house
of the accused presumably for viewing a TV film. Either at
the end of the film or a little before it Shishna Devi was
asked by the mother of accused to fetch some cooking
utensils from the flour mill. So she went and brought the
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utensils to the kitchen. It was right time and the accused
followed her upto the kitchen. He caught hold of her from
behind, muffled her mouth, lifted her up and took her to the
flour mill and after dragging her to a side room, stripped
her off and he committed rape on her.
When the wearing apparels of Shishna Devi became wet
with blood the accused brought a bucket of water and washed
the dress. He threatened her not to reveal it to anybody
else. The house of her aunt (Kaushalya Devi - PW4) was
located close by and Shishna Devi instead of going back to
her own house went to that aunt’s house and spent the night
there.
Next morning Shishna Devi returned home. Her mother
Kunta Devi (PW-3) noticed blood stains on her dress and she
enquired about the cause of it. Shishna Devi then narrated
the incident to her mother. Her husband (father of Shishna
Devi) was not in the house then as he had gone for his work.
(He is a daily-wage earning labourer). Next day when he
returned home the story was narrated to him. On hearing the
same he wanted to report the matter to the police and hence
he took his wife and Shishna Devi to Bangana police station
and lodged Ex. PC complaint.
Shishna Devi was examined by PW 14 Dr. JS Kanwar of the
Indira Gandhi Medical College (Shimla) at 4.30 pm on
23.5.1989. The doctor noted the following features on her
person.
1. Congestion (contusion) of labia minora both sides.
2. Tear in the perennial fourchete in mid-line
involving vaginal mucosa and perineal skin (3/4th cm long in
skin). Swelling and tenderness noted at that site.
3. Congestion and oedema of vestibule around Urethra.
4. Hymen showed lacerations on the left side. There
was oedema and tenderness. It was bleeding on touch.
According to PW-14, the injuries could probably had been
sustained 24-48 hours prior to his examination of the girl.
The doctor collected the swab from the posterior fornix of
the vagina, and that along with the wearing apparels of
Shishna Devi were sent for chemical tests. The result of
such test showed spermatozoa and semen.
The aforesaid materials are sufficient to show, beyond
any spec of doubt, that Shisna Devi was sexually ravaged by
a man. Hence the only question which fell for consideration
is whether it was the accused who did the act on that little
girl. No question of consent of the victim need vex the
judicial mind in this case as the age of Shishna Devi then
was far distal from the age of 16.
For the narrowed compass of consideration in this case
i.e. whether accused was the rapist, the most decisive
evidence is the testimony of the victim herself. None else
will be more competent than her to tell the court as to who
raped her. There is no scope for doubting that she would
not have seen the person who seduced her. PW-2 Shishna Devi
pointed at the accused in unmistakable terms as the person
who ravaged her. On that aspect there was no discrepancy in
the evidence. But the Sessions Judge went into the details
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of the occurrence and after dwelling on certain features
thereof the case was dubbed as highly improbable.
Learned Sessions Judge pointed out from the evidence of
PW-2 that the time of her visit to the house of the accused
was 6 P.M. for viewing the TV film, and then referred to
the evidence of her aunt Kaushalya Devi (PW-4) that Shishna
Devi reached her house at 11 P.M. The Sessions Judge made
the following comment on that aspect:
"Now it remains a mystery where the prosecutrix remained
upto 11 p.m. Even if the watching of the film on the
television by the prosecutrix in the house of accused for
some time is construed to be one hour or two hours, 10-15
minutes in bringing the utensils from the flour mill and
half an hour in the process when the accused-petitioner
dragged her from the kitchen to the room by the side of the
flour mill and raping her and then bringing a bucket of
water with which she washed her shirt, even then there
remains a considerable period of about two hours till 11 O’
Clock at night when the prosecutrix reached the house of her
aunt Kaushlya Devi where she slept for the night. Thus the
unexplained time gap makes the deposition of the prosecutrix
highly improbable."
The Division Bench of the High Court, after referring to
the evidence on that aspect, has observed thus:
"We do not find any unexplained time gap as held by the
Sessions Judge. Moreover, the prosecutrix and her mother
had not given the time when the prosecutrix reached the
house of her aunt Kaushlya Devi. It is only Kaushlya Devi
who has stated that the prosecutrix had come to her house at
about 11 P.M. when she was asleep. In the absence of her
further statement that she has noticed the time as 11 P.M.
in her wrist watch or in any other watch or clock, the
possibility cannot be ruled out that she gave the time only
as per her estimate and the margin of error might be from
half an hour to one hour."
After referring to certain other details of the
occurrence the Sessions Judge expressed her inability to
believe the story narrated by Shishna Devi and then observed
that "there are a few important missing links in the
prosecution case and no attempt has been made by the
investigating officer to collect those links." As an example
the trial judge pointed out that "none from the family of
the accused or the locality has been examined in order to
prove the presence of the prosecutrix in the house of the
accused on the evening of the occurrence for watching the
television." But the High Court totally disagreed with the
said reasoning and stated: "It is too much to expect that
any member of the family of the respondent or from the
houses in the neighbourhood would appear as witness in
support of the statement to the prosecutrix that she was
present in the house of the respondent for watching TV".
The learned Judges pointed out that prosecutrix is the
daughter of a poor daily-wage labourer, whereas the accused
is the son of a proprietor of a flour mill and landlord.
We have no doubt that the Sessions Judge had reached an
erroneous conclusion by approaching the question from a
wrong angle. The evidence of the adolescent girl - the
victim of rape, as duly corroborated by the testimony of her
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mother and aunt, and adequately confirmed by the medical
evidence, had conclusively established that she was
subjected to ravishment by the accused and none else. The
reasons adverted to by the High Court are far sturdier and
stronger than those suggested by the Sessions Judge to rely
on. The Division Bench of the High Court has thus rightly
reversed the order of acquittal and convicted the accused
under Section 376 of the IPC.
While considering the sentence we have to bear in mind
that the offence was committed after the enforcement of
Criminal Law Amendment Act (CLAA) No.43 of 1983. So the
provision prescribing more rigorous sentence must apply if
the offence falls within the purview of sub-section (1) of
Section 376, and then he "shall be punished with
imprisonment of either description for a term which shall
not be less than seven years". If the offence falls under
sub-section (2)(f) (commits rape on an woman when she is
under 12 years of age) the offender is liable to be
"punished with rigorous imprisonment for a term which shall
not be less than ten years but which may be for life and
shall also be liable to fine."
The question of the age of Shishna Devi is, therefore,
important in this area. If she was below the age of 12, on
the date of occurrence the minimum sentence would be
rigorous imprisonment for 10 years. PW-14 Dr. J.S. Kanwar
has fixed up the age of PW-2 Shishna Devi as 10 years on the
date of her examination. This was testified to by the
doctor on the strength of clinical examination conducted by
him. But the doctor did not conduct either ossification
test or any other pathological tests to reach at least the
approximate age of the victim. So his assessment regarding
age is based on fragile premises.
According to Ext.PH (School Certificate of Shishna Devi)
her date of birth is 11-11-1978, which means that on the
date of occurrence she was below 11 years of age. But Ext.
PH lost its credibility when Ext.PO (the Certificate issued
by the Panchayat) was produced in which the date of birth of
PW-2 is shown as 24-11-1978. But the evidence of PW-2’s
mother Kunta Devi (PW-3) shows that Shishna Devi was 12-13
years old. The Sessions Judge found her age as put forth by
Kunta Devi, the mother of PW-2, and the High Court did not
interfere with that. Therefore, we have to follow the said
finding on fact. Even then, the sentence prescribed under
sub-section (1) of Section 376 of the IPC has stipulated a
minimum limit that it "shall not be less than 7 years".
However, learned counsel for the accused made a serious
endeavour to bring the case within the proviso to Section
376 IPC which reads thus:
"Provided that the court may, for adequate and special
reasons to be mentioned in the judgment, impose a sentence
of imprisonment for a term of less than seven years."
As pointed out earlier, the Division Bench of the High
Court reduced the sentence from the minimum limit, on a
premise that "in view of the fact that the occurrence is of
21.5.1989 when he was 25 years of age and he might have
settled in life".
In order to support the said reasoning, learned counsel
for the accused relied on the following observations of a
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two Judge Bench of this Court in the State of Punjab vs.
Gurmit Singh and ors. {1996 (2) SCC 384}: "So far as the
sentence is concerned, the court has to strike a just
balance. In this case the occurrence took place on
30.3.1984 (more than 11 years ago). The respondents were
aged between 21-24 years of age at the time when the offence
was committed. We are informed that the respondents have
not been involved in any other offence after they were
acquitted by the trial court on 1.6.1985, more than a decade
ago. All the respondents as well as the prosecutrix must
have by now got married and settled down in life. These are
some of the factors which we need to take into consideration
while imposing an appropriate sentence on the respondents."
But recently in the State of Karnataka vs. Krishnappa {JT
2000 (3) SC 516} a three Judge Bench of this Court, after
referring to the above decision, restored the sentence of
imprisonment for 10 years fixed by the trial court for the
offence under Section 376 of the IPC. The victim in that
case was aged 7-8 years. The High Court in that case had
reduced the sentence of imprisonment to 4 years. Dr. A.S.
Anand, CJI, who authored the judgment of the Bench, had
stated thus:
"The High Court justified the reduction of sentence on
the ground that the accused-respondent was ‘unsophisticated
and illiterate citizen belonging to a weaker section of the
society’; that he was ‘a chronic addict to drinking’ and
had committed rape on the girl while in a state of
‘intoxication’ and that his family comprising of ‘an old
mother, wife and children’ were dependent upon him. These
factors, in our opinion, did not justify recourse to the
proviso to Section 376(2) IPC to impose a sentence less than
the prescribed minimum. These reasons are neither special
nor adequate. 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. 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."
This Court in the said decision noted that "there are no
extenuating or mitigating circumstances available on the
record which may justify imposition of any sentence less
than the prescribed minimum to the respondent."
As Parliament has disfavoured the sentence to plummet
below the minimum limit prescribed Parliament used the
expression "shall not be less than" which is peremptory in
tone. The court has, normally, no discretion even to award
a sentence less than the said minimum. Nonetheless
Parliament was not oblivious of certain very exceptional
situations and hence to meet such extremely rare
contingencies it made a departure from the said strict rule
by conferring a discretion on the court subject to two
conditions. One is that there should be "adequate and
special reasons", and the other is that such reasons should
be mentioned in the judgment. The expression "adequate and
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special reasons" indicates that it is not enough to have
special reasons, nor adequate reasons disjunctively. There
should be a conjunction of both for enabling the court to
invoke the discretion. Reasons which are general or common
in many cases cannot be regarded as special reasons. What
the Division Bench of the High Court mentioned (i.e.
occurrence took place 10 years ago and the accused might
have settled in life) are not special to the accused in this
case or to the situations in this case. Such reasons can be
noticed in many other cases and hence they cannot be
regarded as special reasons. No catalogue can be prescribed
for adequacy of reasons nor instances can be cited regarding
special reasons, as they may differ from case to case.
As the reasons advanced by the Division Bench of the
High Court could not be supported as adequate and special
reasons learned counsel for the accused projected an
alternative profile in order to support his contention that
there are adequate and special reasons. He submitted the
following: Shishna Devi(PW2) has since been married to
another person and she is now mother of children and is
well-settled in life. The accused was aged 23 when the
offence was committed and now he is 34, but he remains
unmarried. He says that on two occasions his marriage had
reached the stage of engagement but both had to be dropped
off before reaching the stage of marriage due to the social
stigma and disrepute which surrounded him. These are the
reasons which he advanced for extending the benefit of the
proviso.
Those circumstances pleaded by him are not special
reasons for tiding over the legislative mandate for imposing
the minimum sentence. We, therefore, enhance the sentence
for the offence under Section 376 I.P.C. to imprisonment
for 7 years.
The long time lag which elapsed subsequent to the date
of offence and the fact that the prosecutrix got married and
is well settled in life and that she is now mother of
children - all these things which happened during the
intervening period, may be factors for consideration by the
executive or constitutional authorities if they have to
decide whether remission of the sentence can be allowed to
the accused. We make it clear that we have imposed the
enhanced sentence on him without prejudice to any motion he
may make for such remission of the sentence before the
authorities concerned.