BHUPINDER SHARMA versus STATE OF HIMACHAL PRADESH

BHUPINDER SHAR.l\1A

STATE OF HIMACHAL PRADESJ-{ .,.

OCTOBER 17,'.'.2003·

[DORAISWAMY RAJU AND ARIJIT PASAYAT, JJ.)

Penal Code, 1860-Section 376(2) (g) Explanation I and Sections 342, 34, 228A-Gang rape-Plea of absence of corroborative evidence~ Held, such plea hds to be rejected since the complaint of rape by the victim should not be viewed with doubt, disbelief or suspicion-Indian Evidence Act, I 872-Section I I 4A.

Section 376 (2) (g) Proviso and Explanation 1- Gang Rape-Sentence of Imprisonment-Trial Court imposing lesser sentence than minimum prescribed sentence-High Court enhancing the sentence-D Justification of-Held, is justified since trial court did not give adequate and special reasons for imposing lesser sentence which is required under the Code.

Section 228-A-Disc/osure of identity of the victim-Restriction-E Applicability of in respect ofjudgments of the Courts-Held, not applicable but keeping in view the so~ial object, it is appropriate not to disclose the identity of the victim in the judgments.

Appellant is one of the six accused convicted for committing gang · rape on the victim. Trial court convicted the appellant under section 376 read with section 34 IPC and under section 342 read with section 34 IPC and sentenced him for four years and two years RI respectively. The other accused were sentenced to seven years RI for the offence under section 376 and 342 IPC. The appellant was given lesser sentence by the trial court for the reason that he had not actually committed the rape on the victim since the victim escaped before he could do so. TheState filed an appeal-before High Court challenging the grant of lesser sentence to the appellant. The High Court confirmed the conviction of the appellant but enhanced the sentence from four years to ten years RI in the absence of any adequate and special reason indicated by the trial court and on the ground of specific provision

under Explanation 1 of section 376(2)(g) IPC read with section 114-

of the Indian Evidence Act, 1872.

In appeal to this Court, the appellant contended that the prosecution had failed to produce corroborative evidence linking the appellant to the crime purported on the victim.

Dismissing the appeal, the Court

HELD: 1. The sweeping changes made -1>y Criminal Law-(Amen4ment) A.c:t, 1983 introducing new sections i.e. 376-A, 376-B, 376-C: and 376-D reflects the legislative intent to curb the offence of rape, which affects the dignity of woman, with an iron hand. It is unfortunate that respect for womanhood in our country is on the decline and cases of molestation and rape are steadily growing. Decency and morality in public and social life can be protected only if courts deal strictly with those who violate the social norms. [798-H, 799-A, 800-F)

Stephen's "Criminal Law" (9th Edition P.262); Encyclopaedia of Crime and Justice (Volume 4 page 1356); Halsbury 's Statutes of England and Wales (Fourth Edition Volume 12), referred to.

2.1. The physical scar may heal up, but the mental scar will always remain. When woman is ravished, what is inflicted is not merely physical injury but the deep sense of some deathless shame. An accused cannot cling to fossil formula and insist on corroborative evidence, even if taken as whole, the case spoken to by the victim strikes judicial mind as probable. Judicial response to human rights cannot -be blunted by legal jugglery. (799-F]

Rafiq v. State of U P., AIR (1981) SC 96; Bharwada Bhogiabhai and Hirjibhai v. State of Gujarat, AIR (1988) SC 753 and Rameshwar v. The State of Rajasthan, AIR (1952) SC 54, referred to.

2.2. To insist on corroboration except in the rarest of rare cases is to equate one who is victim of the lust of another with an accomplice to crime and thereby insult womanhood. It would be adding insult to injury to tell woman that her chain of rape will not be believed unless it is corroborated in material particulars as in the case ofan accomplice

to crime. The evidence of the girl or the woman, who complains of rape or sexual molestation, should not be viewed with the aid of spectacles fitted with lenses tinged with doubt, disbelief or suspicion. The plea about lack of corroboration has no substance. [800-D-E)

State of Maharashtra v. Chandra Prakash Kewalchand Jain, AIR (1990) SC 658, referred to.

2.3. In cases of gang rape, the proof of completed act of rape by each accused on the victim is not required. The statutory intention in introducing Explanation 1 in relation to section 376(2)(g) appears to have been done with view to effectively deal with the growin1~ menace of gang rape. In such circumstances, it is not necessary that the prosecution should adduce clinching proof of completed act of rape by each one of the accused on the victim or on each one of the victims where there are more than one in order to find the accused guilty of gang rape and convict them under section 376 IPC. [800-H, 801-A-B]

Pr01nod Mahto & Ors. v . The State of Bihar, AIR (1989) SC 1475, relied on.

3. Both in cases of sub-sections (1) and (2) of section 376, the Court has the discretion to impose sentence of imprisonment less than that of the prescribed minimum for 'adequate and special reasons'. If the court does not mention such reasons in the judgment, there is no scope for awarding sentence lesser than the prescribed minimum. In order to exercise the discretion of reducing the sentence the statutory requirement is that the. court has to record 'adequate and special reasons' in the judgment and not fanciful reasons which would permit the court to impose sentence less than the prescribed minimum. The reason has not only to be adequate but special. What is adequate and special would depend upon several factors and no strait-jacket formula can be imposed .. In the case at hand, only reason which seems to have weighed with the trial court is that the present accused appellant had not actually committed the rape. That cannot be ground to warrant lesser sentence; more so in view of Explanation 1 to sub-St!ction (2) of section 376. By operation of deeming provision member of group of persons who have·acted in furtherance of their common intentio~ per se attract-the minimum sentence. Section 34 has been applied by

both the trial court and the High Court, to conclude that rape was committed in furtherance of common intention. Not only was the accused-appellant present, but also he was waiting for his turn, as evident from the fact that he was in the process of undressing. The evidence in this regard is cogent, credible and trustworthy. Since no other just or special reason was given by the trial court nor could any such be shown as to what were the reasons to warrant lesser sentence, the High Court was justified in awarding the minimum prescribed sentence. [801-C-G]

4. Section 228-A 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 and 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 victimisation or ostracisms of the victim of sexual offence for which section 228-A has been enacted, it would be appropriate that in the judgments, be it of High Court or lower Court, the name of the victim should not be indicated. [796-A-C]

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 1265 of 2002.

From the Judgment and Order dated 27.9.2001 of the Himachal Pradesh High Court in Cr!. A. No. 117 of 1999.

Ms. Rachna Gupta for the Appellant.

J.S. Attri and Pramod Kumar Yadav for the Respondent.

The Judgment of the Court was delivered by

ARIJIT PASAY AT, J. : Enhancement of sentence from four years RI as awarded by the triai Court to 10 years as done by the Himachal Pradesh High Court for an offence of rape punishable under Section 376 of the Indian Penal Code 1860, (in short 'the IPC ') is the subject matter of challenge in this appeal.

We do not propose to mention name of the victim. Section 228-A of the Indian Penal Code, 1860 (in short _the '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-B is allege4 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 ostracisms of the victim of sexual offence for which Section 228-Ahas been enacted, it would be appropriate that iri the judgments, be it of 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.

Whiie issuing notice by order dated 8.1.2002 it was clearly indicated by this Court that examination of the case would be restricted to the question of sentence only. Appellant was found guilty of offence punishable under Section 376 read with Section 34 IPC and Section 342 read with Section 34 thereof. The enhancement of sentence was done in respect of offence punishable under Section 376 IPC.

Prosecution_ version as unfolded during trial is that the victim aged about 16 years had gone to Solan in 1998 to purchase medicines for her ailing grandfather. She had gone to Solan for the first time and reached the bus stand at about 2.00 p.m. After having alighted from the bus, she enquired from lady as to where particular medicine shop was located. The lady stated ignorance. At this juncture, two persons came there and asked her to accompany them in three-wheeler as they were both going to the concerned shop. The victim was taken by two boys namely; accused Ashish Kanwar and Suresh to an isolated place in jungle. The three-wheeler was sent back with direction to come in the evening. After gagging her mouth, she was taken to house which was below the road. There were four more boys. Three out of those were identified by the victim during trial. The fourth one namely Shanker was not tried as adequate evidence was not available against l)_im. The victim was sexually abused firstly by accused-Ashish followed by accused-Sunil, Suresh and Ruby. The appellant Bhupinder and Shanker (not tried) were in the process of taking off their clothes with view to perpetuate sexual abuse when the

victim managed to escape with only shirt and ran away bare footed. When she reached near the road, she saw Chaman Lal, ASI who was accompanied by police officers. Meanwhile, two other persons also came there. They were Charanjit (PW-2) and Balvinder (PW-3). When the victim de$cribed the ghastly incident to them, she was taken to the room where she had been raped; but it was found that all six ofthem had fled away. Police took into possession certain articles. Statement of the victim was recorded and ivestigation was undertaken. She was sent for medical examination where she was examined by Dr. Radha Chopra (PW-8). All the convicts were arrested during investigation. Forensic Laboratory tests were conducted and charge sheet was placed under Section 376 read with Section 34 IPC and Section 342 read with Section 34 IPC. The accused persons pleaded not guilty. After conclusion of trial all of them were found guilty and convicted to undergo different sentences. The present appellant Bhupinder was sentenced to undergo RI for four years for the offence relatable to Section 376 read with Section 34 IPC and two years for the offence punishable under Section 342 read with Section IPC. All the other accused persons were convicted to RI for 7 years for the offence punishable under Section 376 and 342 IPC.

In case of present appellant, departure was made so far as sentence is concerned because trial Court was of the view that he had not actually committed rape and the victim had escaped before he could do so. The High Court issued suo motu notice of enhancement of sentence in respect of appeals filed by the present appellant Bhupinder and accused Ashish.

Before the High Court the evidence of victim was stated to be tainted and it was also submitted that the consent was writ large and, therefore, offence under Section 376 was not made out. It was urged that there was no corroboration to the evidence of the victim and, therefore, the prosecution version should not have been accepted.

The High Court found that the evidence was cogent and confirmed the conviction. It took note of Explanation I to sub-section (2) of Section 376 IPC as the case was one of gang rape. It was observed that not only said Explanation I but also provisions of Section 114-A of the Indian Evidence Act, 1872 (in short the 'Evidence Act') applied. Accordingly it was held that involvement of accused appellant Bhupinder caru1ot be ruled

out though he may· not have actually raped the victim. In view of the specific provision relating to sentence and in the absence of any adequate and special reason having been indicated by the trial Judge, the minimum sentence was to be imposed. With these findings the sentence was enhanced as aforesaid.

We have heard learned counsel for the respondent-State. He pointed out that the minimum sentences are prescribed for the offence of rape under Sub-sections (1) and (2). Sub-section 2(l)(g) of Section 376 refers to gang rape, Explanation (I) by deeming provision makes every one in group of persons acting in furtherance of their common intention guilty of offence of rape and each is deemed to have committed gang rape, even though one or more of them may not have actually committed rape. Unfortunately, there was no appearance on behalf of the accused-appellant . and ultimately after the hearing was over and the judgment was reserved and after considerable time thereof appearance was made by learned counsel for the accused appellant. In view of the continued absence without any justifiable reason, and since the matter was closed after hearing learned counsel for the respondent at length, the learned counsel for the accused-appellant though made request to grant an opportunity cf being heard, was only granted permission to file written notes of argument keeping in view that the quantum of sentence alone was to be subject matter of consideration.The stand as appears from the memorandum of appeal and the written submissions made is that at the most the appellant can be held guilty of an attempt to commit the offence and not commission of the offence itself. The evidence is ·also claimed to be unreliable in the absence of corroboration and the telltale symptoms of consent. Regarding quantum of sentence personal and family difficulties are urged, as extenuating circumstances.

The offence of rape occurs in Chapter XVI of IPC. It is an offence affecting the human body. In that Chapter, there is separate heading for 'Sexual offence', which encompasses Sections 375, 376, 376-A, 376-B, 376-C and 376-D. 'Rape' is defined in Section 375. Section's 375 and 376 have been substantially changed by· Criminal Law (Amendment) Act, 1983, and several new sections were introduced by the new Act, i.e. 376-

A, 376-B, 376-C and 376-D. The fact that sweeping changes were introduced reflects the legislative intent to curb with iron hand, the offence of rape which affects the dignity of woman. The offence of rape in its simplest term is 'the ravishment of woman, without her consent, by force, fear or fraud', or as 'the carnal knowledge of woman by force against her will'. 'Rape' or 'Raptus' is when man hath carnal knowledge of 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 woman child, under that age, with or against her will' (Hale PC 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 legal sense to express rape; 1 Hon. 6, la, 9 Edw. 4, 26 (Hale PC 628). In the crime ofrape, 'carnal knowledge' means the penetration to any the slightest degree of the organ alleged to have been carnally know by the male organ of generation (Stephen's "Criminal Law" 9th Ed. p. 262). In 'Encyclopoedia of Crime and Justice' (Volume 4, page 1356) it is stated " ............. even slight penetration is sufficient and emission is unnecessary". In Halsbury's 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 ofa 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 woman is ravished, what is inflicted is not merely physical injury but the deep sense of some deathless shame. An accused cannot cling to fossil formula and insist on corroborative evidence, even if taken as whole, the case spoken to by the victim strikes judicial mind as probable. Judicial response to human rights cannot be blunted by legal jugglery. similar view as expressed by this Court in Rafiq v. State of UP., AIR (1981) SC 96 with some anguish. The same was echoed again in Bharwada Bhogiabhai and Hirjibhai v. State of Gujarat, AIR (1988) SC 753. It was observed in the said case that in the Indian Setting refusal to act on the testimony of the victim of sexual assault in the absence of corroboration as rule, is adding insult to injury. girl or 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 so.ciety 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 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 victim of sex offence is entitled to great weight, absence of, corroboration notwithstanding. woman or girl who is raped is not an accomplice. Corroboration is not the sine qua non for conviction in 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 conviction but that the nec.:ssity of corroboration, as matter of prudence, except where the circumstances make it safe to dispe:nse with it, must be present to the mind of the judge ..... ".

To insist on corroboration except in the rarest of rare cases is to equate one who is victim of the lust of another with an accomplice to crime and thereby insult womanhood. It would be adding insult to injury to tell woman that her chain of rape will not be believed unless it is corroborated in material particulars as in the case of an accomplice to crime. (See State of Maharashtra v. Chandra Prakash Kewalchand Jain, AIR (1990) SC 658. Why should be the evidence of the girl or the woman who complains of rape or sexual molestation be viewed with the aid of spectacles fitted with lenses tinged with doubt, disbelief or suspicion? The plea about lack of corroboration has no substance.

It is unfortunate that respect for womanhood in our country is on the decline and cases of molestation and rape are steadily growing. Decency and morality in public and social life can be protected only if Courts deal strictly with those who violate the social norms. Two alternative custodial punishments are provided; one is imprisonment for life or with imprisonment of either description for term which may extend to ten years. The latter is the minimum, subject of course to the proviso which authorizes lesser sentence for adequate and special re2sons.

In cases of gang rape the proof of completed act of rape by each accused on the victim is not required. The statutory intention in introducing

.. Explanation (I) in relation to Section 376(2)(g) appears to have been done with view to effectively deal with the growing menace of gang rape. In such circumstances, it is not necessary that the prosecution should adduce clinching proof of completed act of rape by each one of the accused on the victim or on each one of the victims where there are more than one in order to find the accused guilty of gang rape and convict them under Section 376 IPC. See Promod Mahta and Ors. v. The State of Bihar, AIR (1989) SC 1475.

Both in cases of sub-sections (1) and (2) the Court has the discretion to impose sentence of imprisonment less than the prescribed minimum , for 'adequate and special reasons'. If the Court does not mention such reasons in the judgment there is no scope for awarding sentence lesser than the prescribed minimum.

In order to exercise the discretion of reducing the sentence the statutory requirement is that the Court has to record 'adequate and special reasons' in the judgment and not fanciful reasons which would permit the Court to impose sentence less than the prescribed minimum. The reason has not only to be adequate but special. What is adequate and special would depend upon several factors and no strait-jacket formula can be imposed. In the case at hand, only reason which seems to have weighed with the trial Court is that the present accused appellant had not actually committed the rape. That cannot be ground to waliant lesser sentence; more so in view of Explanation (1) to sub-section (2) of Section 376. By operation of deeming provision member of group of persons who have acted in furtherance of their common intention per se attract the minimum sentence. Section 34 has been applied by both the trial Court and the High Court, to conclude that rape was committed in furtherance of common intention. Not only was the accused-appellant present, but also he was waiting for his tum, as evident from the fact that he was in the process of undressing. The evidence in this regard is cogent, credible and trustworthy. Since no other just or special reason was given by the trial Court nor could any such be shown as to what were the reasons to warrant lesser sentence, the High Court was justified in awarding the minimum prescribed sentence. That being the position, this appeal is dismissed.

Appeal dismissed.