C.M. Totla, J.@mdashAppellants assail their conviction for the offence of Section 376(2)(g) IPC and sentence awarded of 11 years RI with fine of Rs. 5000/- each in default one months rigorous imprisonment per judgment in Sessions Case No. 57/2004 dated 28.9.2006 before the court of learned Special Judge, Prevention of Atrocities on SC/ST, Cases, Hanumangarh.
2. Heard learned Counsel for the Petitioners and learned Public Prosecutor.
3. In short, alleged facts and events per prosecution are that on 10.9.04 at about 1:30 noon, one T PW/1 coming with her father D PW/4 at P.S. lodged written report Ex. P/1 describing that she of SC/ST caste, on that day at about 8:30 Am with food for her presents on head was passing through way near agricultural field of H where came Shankar lal and Vinod Kumar, and Shankar holding her hand tightly, Vinod Kumar removed food container (Parat) from her head, kept it aside and then both dragged her to nearby field in the crop of ''Bajra'', and, not relenting despite her resistance and cries and throwing her below on ground, Vinod caught firmly pushing her both hands to ground Shankar Lal forcely removing her salwar, also took off own pants, undergrament and forcely did complete sexual act then Shankar lal closed her mouth and also holding her hand, Vinod Kumar also did the same both of them ran away. Also described that she also sustained injuries at around private parts and that she weepingly narrated incident to parents and bhabhi. SHO PW.6 making own endorsement on Ex. P/1 registered FIR No. 192/2004 Ex. P/6 for offence of Section 376 IPC and Section 2(1)(xii) SC/ST Act. Dy. S.P. PW/10 in course of investigation visiting place of occurrence prepared plan Ex. P/8 and memo Ex. P/8A- photographs taken by PW/9 positive Ex. P/15 to 18 and negatives are P/19 to 22. Concerned girl was medically examined by board comprising of Medical Officer PW/2 and two others on same day, examination report is Ex. P/9 and on the basis of x-ray, determined age 17 to 19 years mentioned on Ex. P/2. When T PW/1 was medically examined, her clothes and elements of body collected, sealed and handed over to laboratory.
4. Both Appellants arrested on 11.9.2004 and medically examined reports being Ex. P/6 and P/7. At the time of examination their underwear, pant and also samples of blood sputum etc taken, sealed and handed over to police.
5. In course of investigation, Dy. S.P. also obtained school record of T, the certificate of Board of Secondary Education Ex. P/25 mentioned wherein is her date of birth 1.7.1987 and got her statement record before the Judicial Magistrate.
6. Appellants charged for the offence of Section 376(2), 341, 342 IPC and u/s 3(2)(v) of SC/ST Act that they on 10.9.04 at about 8 Am at village (named) near agricultural field of H and in crops forcibly confining T and without her consent and against wishes doing sexual act with her, committed offence of rape and they did so knowing T to be of SC/ST caste.
7. Other prosecution witnesses examined are S PW/3 mother of PW/1 who state of observing daughter arriving weeping and crying so reached to her who distressingly narrated incident did that her clothes had many blood stains. Father PW/4 also say accordingly. PW.5 state that he on way to his field observed Appellants running and then little after heard weeping of girl. PW/8 and Constable PW/7 depose of keeping packets safe and intact and depositing at laboratory.
8. Appellants explain that witnesses telling wrong and lie in toto because they (Appellants) lodged report against B for trading in illicit liquor and V happen to be acquainted of father of PW.1 who using PW/1 as pawn concocted a completely false case. In defence examined Ramesh DW/1 state above as explained by Appellants.
9. Learned Sessions Judge describing evidence of PW.1 T in detail and some portions verbatim and considering other evidence arrived at conclusions (1) PW.1 says and worth total belief is of rape by both that is gang rape (2) instantly after Ms. T described the incident to mother and father also came to know (3) various blood stains on her clothes (4) T sustained injuries and elements from person i.e. vaginal smear had blood (5) and that no caste element involved. On findings, convicted and sentenced for the offence of Section 376(2)(g) and sentenced to 11 years RI with fine.
10. Learned Counsel for the Appellants restricting his arguments only on quantum of sentence state that Appellants do not dispute various factual findings regarding the incident but facts and circumstances emerging, as argued, make a strong case for reduction of sentence and imposing less than ten years and to the extent of period already undergone. Learned Counsel submits that at the time of incident- as mentioned in memos of arrest - age of Appellant Section 23 and of V 19 years and learned Judge in course of examination u/s 313 Code of Criminal Procedure also observed age to be so- the incident is said to have occurred when PW.1 was on way to agricultural field in morning around 8 and Appellants also going from there so incident occurred without premeditation and on spur of moment - woman in all probabilities not less than 17-18 years and thus age of maturity. Argued that Appellants of adolescent age- one of them marginally above juvenile and other around 22 at the time of incident-have entire life before them and they deeply cursed in everlasting state of remorse should be given an opportunity. Submits that reformation and not retribution being the aim and when sentence even very less than 7 years can be so and it is an appropriate case to reduce the sentence undergone which is nearing 5-6 years. Submits that, if facts warrant, fine be enhanced a little and victim suitably compensated. In support of contentions cited are
11. Hon''ble Apex Court in 2001(1) SCC 247 State of H.P. v. Lekhraj for the offence of Section 376 IPC victim a widow of 55 years of age with two major children who had sustained some injuries in rape whereas, in
12. Learned Public Prosecutor argues that no reasons justifying imprisonment less than minimum is.
13. Thinkingly considered arguments, had a careful look at the evidence produced and disclosed circumstances, and the findings of learned Sessions Judge with basis there of.
14. As far as facts leading to conviction are concerned, a look at the evidence proves that at around 8:15-8:30 am PW.1 was on way to their agricultural field where her parents were. Appellants conjointly and concertedly confined her - one holding her hands and both draggingly pushed her into rising crops- V pressing on hands and mouth pushed her on ground and S removed her and own clothes did commit the act and then S did forcibly keeping pushing her to ground and V did the same.
15. PW/1 who was not at much distance from their field, distressed and shocked, did reach their field and, where at some distance PW.3 mother observed her and saw so coming did reach to PW.1 and (i) PW.1 instantly narrated the entire incident (ii) clothes Salwar and Kurta both had many blood stains (iii) also some injuries (iv) father PW/4 who was there at field soon came to know and apprised (v) first information report lodged at 1.30 at police station which located at about 7 km from place of occurrence. With these established facts convincing acceptable evidence of the act. After lodging FIR, she was medically examined on the very same day by PW.2 and other two doctors and she found to have had ruptured hymen with three wound around there which tended to bleed on touch and samples of swab was taken and also worn clothes of T were sealed which with worn clothes of Appellants and sealed at the time of their examination were safely deposited at Forensic Science laboratory obtaining receipt Ex. P/13. FSL report Ex. P/25 & 27 state that Salwar Kurta, smear of T contained human blood and that underwear of both Appellants and salwar of T had human semen. All the evidence and facts do constitute rape by both at a time with active concert help of each other in above way and hence, proved is offence of Section 376(2)(g).
16. Age of concerned female T PW.1, if at all relevant, was around 17 years date of birth per copy of secondary school certificate Ex. P/25 obtained by Dy.S.P. is 19.7.87 not wholly relying on it. In any case, per medical evidence, age determined after physical examination and X-ray is 17-19 years.
17. For the offence of gang rape, punishment prescribed is not a term which shall not be less than ten years with proviso that Court may, for adequate and special reasons" which have to be mentioned imprisonment less than ten years can be.
18. For imprisoning less than minimum adequate and special reasons have not only to be but are to be expressed. Very definite propositions or straight jacket factors perhaps cannot be. Facts situations principles which may guide and govern are laid down in various judicial pronouncements which may be relevant and govern sentencing for offence u/s 376 IPC and other such enactments prescribing minimum. Subject of sentencing and quantum for such acts as imposed is elaborately dealt with in (i)
19. While attempting to look carefully for principles, situations and the impact observed for imposing punishment less than statutory quantum of sentence reduction of sentence in context of gang rape and rape, seemingly relevant factors also emerge to be previous enmity - spur of moment, if any, for such acts, sometimes perhaps situation and environment (to the very limited extent and very restricted) casual or indifferently or innocently somehow arise and surrounding created age, general health of accused, criminal background and adverse history of accused, conduct, behaviour of accused, then instant soon after, and subsequent to incident. Other mitigating circumstances too can be. Also care is to be taken about challenges confronting the society and if and extent of need of deterrent effect. As long as back in
15. Imposition of sentence without considering its effect on the social order in many cases may be in reality a futile exercise. The social impact of the crime, e.g. where it relates to offences against women, dacoity, kidnapping, misappropriation of public money, treason and other offences involving moral turpitude or moral delinquency which have great impact on social order and public interest, cannot be lost sight of and per se require exemplary treatment. Any liberal attitude by imposing meagre sentences or taking too sympathetic view merely on account of lapse of time in respect of such offences will be resultwise counterproductive in the long run and against societal interest which need to be cared for and strengthened by a string of deterrence inbuilt in the sentencing system.
20. For giving sentence less than minimum prescribed for the offence of 376(2) have to be special reasons which are to be expressly mentioned and should be commensurate with needs and impacts. On given established factual scenario for determining sentence on some occasions hypothetical elements on the basis of which and when perhaps sentence can be extendable to maximum provided or ought to be. Perhaps relevant may be tender age of victim, number of persons if involved more than one happened and likely effect on person of victim with social effects and stigma and other impacts possibly in context of female and other impacts on life, injuries caused if any, age of accused and sometimes other very prevalent social structures etc.
21. Now looking in the instant case for the reasons which may help in determining punishment for Appellant convicts. Age of V and S was 20 & 23 with no bad antecedents- on the other hand, victim was below 18, un-married and she sustained injuries. The incident committed at about 8-8.30 am when in day light victim was on way to agricultural field which is very normal. The incident committed in day light pushingly dragging her by both convicts in to adjoining rising crops and then threat by both- one pushing and forcely immolising her and other doing the act by aggression and against her will.
22. Considering all this, if not are the reason to award more than minimum prescribed definitely no reason appear to award lesser than minimum.
23. Looking to past conduct post appeal, sentence of Appellant S was suspended for a fortnight in January, 2007 because of marriage of sister but he did not surrender on scheduled date and then arrested only in march 2008.
24. In above scenario, on the basis of age and other circumstances no reason for reducing the sentence less than to minimum prescribed is. However, in the opinion of the Court, justified and appropriate may be to reduce the sentence a little to ten years RI which is statutory minimum.
25. Allowing the appeal partly, conviction of Appellants Shankar S/o Jagdish and Vinod S/o Randheer Singh for the offence of Section 376(2)(g) is upheld and reducing their sentence (from 11 years RI) each of them is sentence to ten years rigorous imprisonment. Fine imposed to stand.
