THE HON'BLE SMT. JUSTICE JUVVADI SRIDEVI
CRIMINAL REVISION CASE No.1330 OF 2009
ORDER:
This Criminal Revision Case, under Sections 397 and 401 of Cr.P.C., is filed by the petitioner/accused No.1, challenging the judgment, dated 03.08.2009, passed in Criminal Appeal No.23 of 2008 by the learned IV Additional Sessions Judge (FTC), Mahabubnagar, whereby, the judgment, dated 31.01.2008, passed in S.C.No.4 of 2007 by the Assistant Sessions Judge, Narayanpet, convicting the petitioner/A.1 for the offence under Section 376 IPC and sentencing him to undergo simple imprisonment for a period of seven years and also to pay a fine of Rs.1,000/-, in default, to undergo simple imprisonment for a period of one month, was confirmed.
2. I have heard the submissions of Smt. Kiranmai, learned counsel, representing Smt. D.Sangeetha Reddy, learned counsel for the petitioner/A.1, learned Assistant Public Prosecutor appearing for the respondent/State and perused the record.
3. The facts germane for disposal of this Criminal Revision Case, in brief, are as follows:
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Justice Juvvadi Sridevi Crl.R.C.No.1330 of 2009 On 02.09.2005, at about 12.00 noon, PW.1 lodged Ex.P1-
complaint with Maddur Police Station stating that on 31.08.2005, at about 10.00 AM, when his daughter (PW.2/victim girl) aged about 13 years was weeding out castor seed plants, the petitioner/A.1, and A.2 came from behind, caught hold of her hands and dragged her into the adjacent Jawar fields. While she shouted, A.2 absconded from the scene, whereas the petitioner/A.1 forcibly raped her and also warned to kill her, if she informs the incident to anyone. Meanwhile, PW.3 went there and found the victim girl, upon which, the petitioner/A.1 also fled away from the scene. PW.2/victim girl informed PW.3 about the rape by the petitioner/A.1 and later, PW.1 informed the same to the village elders. Since no action was taken, PW.1 lodged Ex.P1-complaint for taking necessary action against the culprits.
4. Basing upon the said complaint, PW.11 registered a case in Crime No.42 of 2005 for the offence under Section 376 of IPC and sent express FIR to the concerned. Later, PW.13-Circle Inspector of Police, Makthal, incharge of Narayanpet circle, took up further investigation.
5. During the course of investigation, PW.13 conducted scene of offence panchanama in the presence of PWs.4 and 5; recorded the statement of PW.2 under Section 164 of Cr.P.C; prepared 3 Justice Juvvadi Sridevi Crl.R.C.No.1330 of 2009 rough sketch; seized the clothes of PW.2/victim girl in the presence of PW.6 and another; examined the PW.2/victim and referred her to the Government Area Hospital, Narayanpet for examination; the Doctor preserved her vaginal smear and sent to Forensic Science Laboratory for opinion; the Forensic Science Laboratory suggested that vaginal intercourse took place, the age of the PW.2/victim girl is 16 years as per school Bonafide certificate. The confession of the accused was recorded in the presence of PWs.7 and 8 and the clothes were seized under a cover of panchanama. PW.10-Doctor examined the accused with regard to their potency and same was sent to Forensic Science Laboratory for analysis. The Forensic Science Laboratory report opined that the accused is potent to perform sexual intercourse. The accused were arrested on 09.09.2005 and remanded to judicial custody. After completion of the investigation, charge sheet was laid before the Magistrate concerned.
6. The Magistrate concerned took cognizance of the offence and registered the same as P.R.C.No.13 of 2006, and after furnishing the copies of documents to the accused, committed the case to the Court of Sessions, Mahabubnagar. On committal, the Court of Sessions, Mahabubnagar numbered the case as S.C.No.4 of 2007 4 Justice Juvvadi Sridevi Crl.R.C.No.1330 of 2009 and made over the same to the Court below for disposal, in accordance with law.
7. On appearance of the accused before the Court below, charge was framed against the petitioner/A.1 of the offence under Section 376 of IPC and for the offence under Section 376 read with Section 114 of IPC against A.2, read over and explained to them for which, they pleaded not guilty and claimed to be tried.
8. To prove the case of prosecution, the prosecution examined PWs.1 to 13 and marked Ex.P1 to P11, apart from M.Os.1 to 3. PW.1 is the complainant and father of the victim girl. PW.2 is the victim girl. PW.3 is the mother of PW.2. PWs.4 and 5 are panch witnesses for the scene of offence. PW.6 is the panch witness for seizure of M.Os.1 to 3. PWs.7 and 8 are panch witnesses for confession of the accused and seizure of clothes. PW.9 is the Doctor who examined the victim girl and issued Ex.P6- Final Opinion. PW.10 is the doctor who examined the accused and issued potency certificates. PW.11 is the Sub Inspector of Police who issued FIR under Ex.P9. PWs.12 and 13 are the Investigation Officers. Ex.P1 is the complaint. Ex.P2 is the scene of offence panchanama. Ex.P3 is the crime details form. Ex.P4 is the seizure panchanama of M.Os.1 to 3. Ex.P5 is the signature of PW.7 on seizure panchanama. Ex.P6 is the final opinion, dated 12.01.2006. 5
Justice Juvvadi Sridevi Crl.R.C.No.1330 of 2009 Ex.P7 is the preliminary certificate. Ex.P8 is the final opinion, dated 24.11.2005. Ex.P9 is the FIR. Ex.P10 is the statement of PW.2 recorded under Section 164 of Cr.P.C. Ex.P11 is the FSL report. M.O.1 is the Petty Coat of PW.2/victim girl. M.O.2 is the blouse of the PW.2/victim girl. M.O.3 is the Underwear of PW.2/victim girl.
9. When the accused was confronted with the incriminating material appearing against them and were examined under Section 313 of Cr.P.C., they denied the same. On behalf of the accused, no oral evidence has been adduced, but Ex.D1-a portion marked in the statement of PW.1 under Section 161 of Cr.P.C. was marked.
10. The trial Court, after analyzing the entire evidence on record, while acquitting A.2 of the offence under Section 376 read with Section 114 of IPC, convicted the petitioner/A.1 of the offence under Section 376 of IPC and sentenced him as stated supra. Aggrieved by the same, the petitioner/A.1 preferred the subject Criminal Appeal No.23 of 2008 before the Court below, and the Court below, on reappreciation of the entire evidence on record, confirmed the conviction and sentence recorded against the petitioner/A.1 of the offence under Section 376 of IPC. Aggrieved by the same, the petitioner/A.1 filed this Criminal Revision Case. 6
Justice Juvvadi Sridevi Crl.R.C.No.1330 of 2009
11. Learned counsel for the petitioner/A.1 would submit that the Court below erred in convicting the petitioner/A.1 of the offence under Section 376 of IPC, without there being any cogent and convincing evidence. There is a delay of two days in lodging the FIR, which is fatal to the case of prosecution. Though PW.1 stated that the delay occurred due to the reason that a panchayath took place, no such panchayath took place. Further, in the absence of conducting DNA test, it is difficult to conclude as to whom the semen belongs to. Further, no bruises were found on the body of the victim girl and there were no blood stains in the surroundings. Though, PW.2 stated that her clothes were torned in the incident, but the Court below found only artificial cuttings on M.Os.1 to 3. PWs.7 and 8 turned hostile and did not support the case of prosecution and as such, the seizure of clothes from the petitioner/A.1 is not legally proved. PW.9, a crucial witness, doubted the age of victim girl and also observed that the sample of semen was not sent for DNA test. In view of these suspicious circumstances, the petitioner/A.1 is entitled for acquittal of the offence with which he was charged, by exercising revisional jurisdiction of this Court under Sections 397 and 401 of Cr.P.C. and ultimately prayed to allow the Criminal Revision Case as prayed for.
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Justice Juvvadi Sridevi Crl.R.C.No.1330 of 2009
12. Per contra the learned Assistant Public Prosecutor supported the impugned judgment and contended that the petitioner/A.1 committed a heinous offence of rape on the PW.2/victim girl. The evidence placed on record clinchingly proves the guilt of the petitioner/A.1 beyond all reasonable doubt for the offence under Section 376 of IPC. It is settled law that in rape cases, conviction can be solely based on the evidence of the victim, provided such evidence inspires confidence in the mind of the Court. No woman would falsely implicate a person in sexual offence, as the honour and prestige of that woman would also be at stake. The evidence of PW.2/victim girl coupled with the other oral and documentary evidence on record clearly establish that the petitioner/A.1 committed rape on PW.2/victim girl. The trial Court as well as the lower Appellate Court have properly appreciated the evidence on record and rightly convicted the petitioner/A.1 of the offence under Section 376 of IPC. The sentence imposed on the petitioner/A.1 by both the Courts below is also justified. There are no circumstances to interfere with the impugned judgment and ultimately prayed to dismiss the Criminal Revision Case.
13. In view of the above submissions, the point that arises for determination in this Criminal Revision Case is as follows: 8
Justice Juvvadi Sridevi Crl.R.C.No.1330 of 2009 "Whether the impugned judgment, dated 03.08.2009, passed in Criminal Appeal No.23 of 2008 by the IV Additional District and Sessions Judge (FTC), at Mahabubnagar, convicting the petitioner/A.1 of the offence under Section 376 IPC is legally sustainable?
POINT:-
14. I have given thoughtful consideration to the above rival submissions and meticulously gone through entire material on record. This Court is aware of the settled legal position that this Court, in exercise of its Revisional jurisdiction under Sections 397 and 401 of Cr.P.C., cannot interfere with the concurrent findings of fact recorded by the Courts below, unless they are perverse or arrived at ignoring material evidence. Further, the Revisional power of this Court under Sections 397 and 401 of Cr.P.C., cannot be equated with that of an appeal. But however, when the decision of the Court below is perverse or untenable in law or grossly erroneous or glaringly unreasonable or based on no material or where the material facts are wholly ignored or where the judicial discretion is exercised arbitrarily or capriciously, this Court can interfere with the said decision in exercise of its Revisional jurisdiction. Section 401 of Cr.P.C. enables the High Court to exercise all powers of appellate Court, if necessary, in aid 9 Justice Juvvadi Sridevi Crl.R.C.No.1330 of 2009 of power of superintendence or supervision, as a part of Revisional power. Section 397 of Cr.P.C. confers power on the High Court or Sessions Court, as the case may be, for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding sentence or order, recorded or passed, and as to the regularity of any proceeding of such inferior court. Thus, a duty rests on the High Court under Sections 397 and 401 of Cr.P.C. to correct manifest illegality resulting in gross miscarriage of justice.
15. In the above context in regard to the scope and limitation imposed on Revisional court, this Court deems it proper to evaluate the entire case on hand, in order to find out as to whether the prosecution has established the case of rape against the petitioner/A.1 and if not, whether the petitioner/A.1 is entitled for acquittal at the hands of Revisional court.
16. There is evidence of PW.1/father of the victim, PW.3/mother of the victim and PW.2/victim girl to the effect that the victim girl was aged about 13 years, at the time of the incident. PW.9-Doctor who examined the victim girl found redness present on the area fourchette. The vaginal smears of the victim girl was preserved and were sent to Forensic Science Laboratory. The Forensic Science Laboratory report clearly discloses that there was vaginal 10 Justice Juvvadi Sridevi Crl.R.C.No.1330 of 2009 intercourse and hence Ex.P6-final opinion was issued stating that there was vaginal intercourse. Though PW.9 was cross-examined and it was elicited that unless DNA test is performed, it cannot be said as to whom the semen belongs, this statement fortifies the case of prosecution that the victim girl was raped. Further, except victim girl there are no eye witnesses to the incident. However, PW.2 stated in her evidence that on the date of incident, she went to agricultural fields which was situated at the outskirts of their village and while she was in weeding operation, petitioner/A.1, and A.2 went there. She further deposed that A.2, after taking books from the petitioner/A.1, left the place. Whereas, the petitioner/A.1 pulled her into jawar crops standing on their fields and forcibly raped her by overpowering her. After sometime, her mother came there and called her and on observing her mother, the petitioner/A.1 ran away from the scene. Then she informed the incident to her mother who inturn took the victim girl to their house and informed to PW.1/father of the victim girl. It is not the case that the petitioner/A.1 is not known to the victim. The evidence of informing PW.1 after the incident is corroborated by the evidence of PW.3/mother of the victim girl. PW.3 deposed that when she went to the fields and called her daughter on the date of incident, there was no response and hence she again called in a 11 Justice Juvvadi Sridevi Crl.R.C.No.1330 of 2009 loud tone, she found the victim coming from the fields of Buchi Reddy by weeping. On questioning, victim informed her about the commission of rape on her by the petitioner/A.1 by gagging a kerchief into her mouth, inspite of her request to leave her. The version of gagging her mouth with kerchief was stated by the victim girl before the Magistrate also, who recorded her statement under Section 164 of Cr.P.C. Furthermore, the Forensic Science Laboratory report discloses that the clothes of the victim had human semen and spermatozoa. All these circumstances clearly go to show that the PW.2/victim girl was raped by the petitioner/A.1, as stated by the victim. As rightly contended by the learned Assistant Public Prosecutor, conviction can be solely based on the evidence of the victim, if such evidence inspires confidence in the mind of the Court. Further, the victim in a rape cases is not to be treated as an accomplice but could only be characterized as an injured witness. In the instant case, the statements of PW.2 are worthy of credence and reliable. Moreover, the Court below concluded that there was no enmity between the PW.1's family and petitioner/A.1. Further, though PW.2 stated that her petty coat was torn at the time of incident and though the evidence of PW.3 in this regard is inconsistent and though there is no proper evidence regarding the blood stains also, 12 Justice Juvvadi Sridevi Crl.R.C.No.1330 of 2009 but mere non finding of blood stains and also the holes on the clothes of the victim does not prove that she was not raped forcibly. The evidence of PW.9 clearly go to show that even after two days of the incident, redness was present on the private parts of the victim, which indirectly suggest that the victim girl was forcibly raped by the petitioner/A.1. Further, with regard to the alleged ambiguity with regard to the scene of offence, the Court below concluded that jawar crop stand in the fields of Buchi Reddy, the complainant's fields were situated in north-west direction to the fields of said Buchi Reddy. As both the fields had jawar crop standing at that time, probably, victim might have been dragged from their land and PW.3 got confused in whose land offence exactly took place; and the discrepancy, if any, with regard to the same is negligible. The Court below further held that though nobody came to rescue the victim girl and no independent witness was examined to prove the incident, it will not defeat the case of prosecution, given the evidence of Doctor which is corroborated with the evidence of PW.2.
17. This Court is in agreement with the conclusions reached by the Court below, which are based on sound reasoning. There is nothing to interfere with the same. Accordingly, this Court confirms the impugned judgment of the Court below insofar as the 13 Justice Juvvadi Sridevi Crl.R.C.No.1330 of 2009 conviction of the petitioner/A.1 under Section 376 of IPC is concerned.
18. As far as the quantum of sentence imposed against the revision petitioner is concerned, the offence took place as long back as in the year 2005. The petitioner/A.1 attended the trial Court as well as the lower appellate Court in connection with this case. Further, the petitioner/A.1 was on bail throughout the case before the trial Court as well as the lower appellate Court. Further, this Court, vide order, dated 07.08.2009, passed in Crl.R.C.M.P.No.1818 of 2009, granted suspension of sentence against petitioner/A.1 and ordered his release on bail. It is brought to the notice of this Court that in all, the petitioner/A.1 was in judicial custody nearly for a period of 83 days in connection with this case.
19. Determining the adequacy of sentence to be awarded in a given case is not an easy task, so also evolving a uniform sentencing policy. That is because the quantum of sentence that may be awarded depends upon a variety of factors including mitigating circumstances peculiar to a given case. The Courts generally exercise considerable amount of discretion in the matter of determining the quantum of sentence. In doing so, the Courts 14 Justice Juvvadi Sridevi Crl.R.C.No.1330 of 2009 would be influenced in varying degrees by the reformative, deterrent and punitive aspects of punishment, delay in the conclusion of the trial and legal proceedings, the age of the accused, his/her physical/health condition, the nature of the offence, the weapon used and in the cases of illegal gratification the amount of bribe, loss of job and family obligations of accused are also some of the considerations that weigh heavily with the Courts while determining the sentence to be awarded. The Courts have not attempted to exhaustively enumerate the considerations that go into determination of the quantum of sentence nor have the Courts attempted to lay down the weight that each one of these considerations carry. That is because any such exercise is neither easy nor advisable, given the myriad situations in which the question may fall for determination. Broadly speaking, the Courts have recognized the factors mentioned earlier as being relevant to the question of determining the sentence. There is plethora of judgments of the Hon'ble Supreme Court on this subject.
20. In B.G. Goswami v. Delhi Administration1, the Hon'ble Supreme Court, while reducing the punishment to the period already undergone by the accused therein, laid down the general 1 (1974) 3 SCC 85 15 Justice Juvvadi Sridevi Crl.R.C.No.1330 of 2009 principles that are to be borne in mind by the Courts while determining the quantum of punishment. It was observed as follows:-
"The sentence of imprisonment can be for a lesser period but in that event the Court has to assign special reasons which must be recorded in writing. In considering the special reasons the judicial discretion of the Court is as wide as the demand of the cause of substantial justice. Now the question of sentence is always a difficult question, requiring as it does, proper adjustment and balancing of various considerations which weigh with a judicial mind in determining its appropriate quantum in a given case. The main purpose of the sentence broadly stated is that the accused must realize that he has committed an act which is not only harmful to the society of which he forms an integral part, but is also harmful to his own future, both as an individual and as a member of the society. Punishment is designed to protect society by deterring potential offenders as also by preventing the guilty party from repeating the offence; it is also designed to reform the offender and re- claim him as a law abiding citizen for the good of the society as a whole. Reformatory, deterrent and punitive aspects of punishment thus play their due part in judicial thinking while determining this question. In modern civilized societies, however, reformatory aspect is being given somewhat greater importance. Too lenient as well as too harsh sentences both lose their efficaciousness. One does not deter and the other may frustrate thereby making the offender a hardened criminal. In the present case, after weighing the considerations already noticed by us and the fact that to send the appellant back to jail now after 7 years of the agony and harassment of these proceedings when he is also going to lose his job and to earn a living for himself and for his family members and for those dependent on him, we feel that it would meet the ends of justice if we reduce the sentence of imprisonment to that already undergone but increase the sentence of fine from Rs. 200/- to Rs. 400/-. Period of imprisonment in case of default will remain the same."
21. Further, in the recent decision of the Hon'ble Apex Court in V.K. Verma v. CBI2, it was held as follows:-
"In imposing a punishment, the concern of the court is with the nature of the act viewed as a crime or breach of the law. The maximum sentence or fine provided in law is an indicator on the gravity of the act. Having regard to the nature and mode of 2 (2014) 3 SCC 485 16 Justice Juvvadi Sridevi Crl.R.C.No.1330 of 2009 commission of an offence by a person and the mitigating factors, if any, the court has to take a decision as to whether the charge established falls short of the maximum gravity indicated in the statute, and if so, to what extent.
The long delay before the courts in taking a final decision with regard to the guilt or otherwise of the accused is one of the mitigating factors for the superior courts to take into consideration while taking a decision on the quantum of sentence.
The Appellant is now aged 76. We are informed that he is otherwise not keeping in good health, having had also cardio vascular problems. The offence is of the year 1984. It is almost three decades now. The accused has already undergone physical incarceration for three months and mental incarceration for about thirty years. Whether at this age and stage, it would not be economically wasteful, and a liability to the State to keep the Appellant in prison, is the question we have to address. Having given thoughtful consideration to all the aspects of the matter, we are of the view that the facts mentioned above would certainly be special reasons for reducing the substantive sentence but enhancing the fine, while maintaining the conviction."
22. While determining the quantum of sentence, the Court is expected to strike balance between too harsh and too lenient view. Balancing has to be done between the rights of the accused and the needs of society at large. It would also be a daunting challenge to preserve the trust of citizens when using the authority of the Courts to convict an accused.
23. In the instant case, the incident pertains to the year 2005, i.e., more than 17 years ago. The petitioner/A.1 has already undergone physical incarceration for about 83 days and mental trauma for about 17 years. Keeping in view the provisions of Article 21 of the Constitution of India and the interpretation 17 Justice Juvvadi Sridevi Crl.R.C.No.1330 of 2009 thereof qua the right of an accused to a speedy trial, judicial compassion can play a role and a convict can be compensated for the mental agony which he undergoes on account of protracted trial. Under these circumstances, directing the petitioner/A.1 to serve the remaining period of sentence imposed upon him would be unfair. Article 21 of the Constitution would bring within its sweep, not only expeditious trial but disposal of appeals and revisions. Having given thoughtful consideration to all the aspects of the matter, this Court is of the considered opinion that the facts mentioned above would certainly be special reasons for reducing the substantive sentence, while maintaining the conviction. Considering the totality of the circumstances, this Court deems it appropriate that if the sentence of imprisonment is modified to the period already undergone by the petitioner/A.1, the same would meet the ends of justice.
24. Accordingly, while maintaining the conviction recorded against the petitioner/A.1 of the offence under Section 376 of IPC, the sentence of imprisonment imposed against him by the trial Court and confirmed by the lower appellate Court, is reduced to the period of imprisonment already undergone by him. The fine amount of Rs.1,000/- imposed is maintained, along with default sentence.
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Justice Juvvadi Sridevi Crl.R.C.No.1330 of 2009
25. With the above reduction / modification of sentence of imprisonment, this Criminal Revision Case is disposed of.
Miscellaneous applications, if any, pending in this Criminal Revision Case shall stand closed.
____________________ JUVVADI SRIDEVI, J 28th day of April, 2023 Ksk