Andhra Pradesh High Court - Amravati
Panditi Lakshmareddy vs The State Of A.P. on 8 April, 2022
HON'BLE SRI JUSTICE RAVI NATH TILHARI
CRIMINAL REVISION CASE No.645 OF 2007
08.04.2022
Between:
Panditi Lakshmareddy
....Petitioner.
And:
The State of A.P.,
rep. by Public Prosecutor,
High Court of Andhra Pradesh.
Amaravati.
....Respondent
DATE OF JUDGMENT PRONOUNCED:08.04.2022.
SUBMITTED FOR APPROVAL:
THE HON'BLE SRI JUSTICE RAVI NATH TILHARI
1. Whether Reporters of Local newspapers may Yes/No
be allowed to see the Judgments?
2. Whether the copies of judgment may be Yes/No
Marked to Law Reporters/Journals
3. Whether Your Lordships wish to see the fair
Copy of the Judgment? Yes/No
________________________
RAVI NATH TILHARI, J
2
*HON'BLE SRI JUSTICE RAVI NATH TILHARI
+CRIMINAL REVISION CASE No.645 OF 2007
%08.04.2022
# Panditi Lakshmareddy
....Petitioner.
And:
The State of A.P.,
rep. by Public Prosecutor,
High Court of Andhra Pradesh.
Amaravati.
....Respondent
! Counsel for the petitioner: Sri T.S. Rayulu, representing Smt
Kavitha Gottipati, learned counsel
for the petitioner.
^ Counsel for the respondent/State: Sri S. Venkata Sai,
Special Assistant Public Prosecutor
< Gist:
> Head Note:
? Cases referred:
1.(2004) 1 Supreme Court Cases 64
2. 2014 Law Suit (SC) 120
3. (2021) 4 SCC 345
4. (1998) 7 SCC 177
5.(1992) 4 SCC 225
6. 1993 Supp (3) SCC 667
7. (1996) 9 SCC 287
8. (1997) 5 SCC 341
9.(2000)3 SCC 70
10.(2019 16 SCC 766
11. 2021 SCC OnLine SC 965
12. 2019 LawSuit (SC) 1884
13(2004) 4 SCC 379
14 (2019) 14 SCC 151
152019 SCC OnLine All 4962
3
HON'BLE SRI JUSTICE RAVI NATH TILHARI
CRIMINAL REVISION CASE No.645 OF 2007
ORDER:
1. Heard Sri T.S. Rayulu, learned counsel representing Smt Kavitha
Gottipati, for the petitioner revisionist and Sri S. Venkata Sai, learned
Special Assistant Public Prosecutor for the respondent/State.
2. The criminal revision under Sections 397 and 401 of the Code of
Criminal Procedure, 1973 ("Cr.P.C") has been filed challenging the
judgment dated 22.03.2007, passed by the X Additional District &
Sessions Judge (FTC), Guntur at Narasaraopet, partly allowing the
appeal of the petitioner in Crl.A.No.4 of 2005, maintaining the judgment
dated 05.10.2004, convicting the petitioner for offence under Sections
376 read with 511 IPC, but reducing the sentence of 5 years R.I as
imposed by the Assistant Sessions Judge, Gurazala in S.C.No.160 of
2004 to 4 years R.I and confirming the remaining portion of the
sentence.
3. The Sub Inspector of Police, Piduguralla Police Station, filed the
charge sheet against the petitioner-accused stating that on 29.12.2003
at about 12.00 noon when "the victim" along with P.Ws.3 to 5 went to
the fields to collect plum fruits (Regu Pallu), the accused with evil
intention to commit rape, took the victim towards the red gram field
near Daggu Bhavi, threw her down removed Langa and tried to commit
rape and when P.Ws.3 to 5 reached there, the accused threatened them
with dire consequences. On hearing the hue and cry P.Ws.6 and 7
rushed to the spot, the accused fled away. The accused also slapped
the victim, who returned home and informed the same to her mother
(PW.8). The victim‟s father P.W.1, on returning home learnt about the
incident and on 29.12.2003 at 9.00 p.m. lodged report to the Police
Station.
4. The Sub Inspector of Police, Piduguralla registered case in Crime
No.280 of 2003 under Sections 506, 376 read with Section 511 IPC,
sent FIR to the Court and the officers concerned and made
investigations. He examined the witnesses, recorded their statements,
inspected the scene of offence on 30.12.2003 at 10.00 a.m in the
presence of the mediators and also prepared rough sketch of the scene.
The Investigation Officer (I.O) (PW.10) arrested the accused on
17.01.2004, produced him to the Court and obtained remand. After
completion of the investigation the IO filed the charge sheet for the
offence punishable under Sections 506, 376 read with 511 IPC.
5. The I Additional Judicial Magistrate First Class, Gurazala, took
the case on file under Sections 506(2), 376 r/w 511 IPC against the
accused and after complying with the formalities committed the case to
the Court of Sessions, Guntur, who made it over to the Court of the
Assistant Sessions Judge, Gurazala.
6. In trial, P.Ws.1 to 10 were examined and Exs.P.1 to P.4 were
marked for the defence. After closing the prosecution case, the accused
was examined under Section 313 Cr.P.C. He did not offer any defence.
7. The learned trial Court convicted the accused for the offence
under Section 376 r/w Section 511 IPC and sentenced to undergo RI for
five years and pay fine of Rs.1,000/-. In default to undergo Simple
Imprisonment SI for two months.
8. The appeal filed by the revisionst-accused was partly allowed in
the terms already mentioned above against which this revision has been
filed.
9. Sri T.S. Rayulu, learned counsel for revisionst submitted that the
prosecution failed to prove the charges beyond reasonable doubt. The
conviction has been based on the testimony of child witnesses which
are most unreliable. There was inconsistency in the statements of the
witnesses P.Ws.2 to 5. Attempt to commit rape is not proved and in any
case the punishment imposed is excessive and deserves to be reduced.
10. Sri S. Venkata Sai Nath, learned Special Assistant Public
Prosecutor submitted that the conviction can be based on the testimony
of child witnesses. There was no inconsistency in the evidence of the
child witnesses which found corroboration from other evidence. The
minor discrepancies are of no significance. The offence was proved
beyond reasonable doubts. No leniency deserves to be shown in the
awarded punishment and the revision deserves dismissal.
11. I have considered the submissions advanced by the learned
counsels and perused the material on record.
12. In view of the submissions advanced, the court first proceeds to
consider the legal position in respect of the evidentiary value of a child
witness testimony.
13. In Ratansinh Dalsukhbhai Nayak vs. State of Gujarat1, the
Hon‟ble Apex Court held as under in paragraphs 6 and 7 reproduced as
below:
"6. Pivotal submission of the appellant is regarding
acceptability of PW-11's evidence. Age of the witness during
examination was taken to be about 10 years. Indian
Evidence Act, 1872 does not prescribe any particular age as
a determinative factor to treat a witness to be a competent
one. On the contrary, Section 118 of the Evidence Act
envisages that all persons shall be competent to testify,
unless the Court considers that they are prevented from
understanding the questions put to them or from giving
rational answers to these questions, because of tender
years, extreme old age, disease- whether of mind, or any
other cause of the same kind. A child of tender age can be
allowed to testify if he has intellectual capacity to
understand questions and give rational answers thereto.
1 (2004) 1 Supreme Court Cases 64
This position was concisely stated by Brewer J in Wheeler v.
United States (159 U.S. 523). The evidence of a child
witness is not required to be rejected per se; but the Court
as a rule of prudence considers such evidence with close
scrutiny and only on being convinced about the quality
thereof and reliability can record conviction, based thereon.
7. In Dattu Ramrao Sakhare v. State of
Maharashtra (1997 (5) SCC 341) it was held as follows:
"A child witness if found competent to depose to the facts and
reliable one such evidence could be the basis of conviction. In
other words even in the absence of oath the evidence of a child
witness can be considered under Section 118 of the Evidence Act
provided that such witness is able to understand the answers
thereof. The evidence of a child witness and credibility thereof
would depend upon the circumstances of each case. The only
precaution which the Court should bear in mind while assessing
the evidence of a child witness is that the witness must be a
reliable one and his/her demeanour must be like any other
competent witness and there is no likelihood of being tutored".
The decision on the question whether the child witness has
sufficient intelligence primarily rests with the trial Judge who
notices his manners, his apparent possession or lack of
intelligence, and said Judge may resort to any examination
which will tend to disclose his capacity and intelligence as well
as his understanding of the obligation of an oath. The decision of
the trial court may, however, be disturbed by the higher Court if
from what is preserved in the records, it is clear his conclusion
was erroneous. This precaution is necessary because child
witnesses are amenable to tutoring and often live in a world of
make beliefs. Though it is an established principle that child
witnesses are dangerous witnesses as they are pliable and liable
to be influenced easily, shaked and moulded, but it is also an
accepted norm that if after careful scrutiny of their evidence the
Court comes to the conclusion that there is an impress of truth
in it, there is no obstacle in the way of accepting the evidence of
a child witness."
14. In Rahey Shyam vs. State of Rajasthan2, the same principles
were reiterated. Recently, in Hari Om Alias Hero vs. State of Uttar
Pradesh3, the Hon‟ble Apex Court held as under:
"22. At the outset, we must note the perspective from which the
evidence of a child witness is to be considered. The caution
expressed by this Court in Suryanarayana9 that "corroboration of
the testimony of a child witness is not a rule but a measure of
caution and prudence" is a well-accepted AIR (1956) SC
441 (1973) 1 SCC 202 (2001) 9 SCC 129 (2010) 12 SCC
324 (2015) 7 SCC 167 principle. While applying said principle to
the facts of that case, this Court in Suryanarayana9 observed:-
"5. Admittedly, Bhavya (PW 2), who at the time of
occurrence was about four years of age, is the only solitary
eyewitness who was rightly not given the oath. The time and
place of the occurrence and the attending circumstances of
the case suggest no possibility of there being any other
person as an eyewitness. The evidence of the child witness
cannot be rejected per se, but the court, as a rule of
prudence, is required to consider such evidence with close
scrutiny and only on being convinced about the quality of
the statements and its reliability, base conviction by
accepting the statement of the child witness. The evidence
of PW 2 cannot be discarded only on the ground of her being
of tender age. The fact of PW 2 being a child witness would
require the court to scrutinise her evidence with care and
caution. If she is shown to have stood the test of cross-
examination and there is no infirmity in her evidence, the
prosecution can rightly claim a conviction based upon her
testimony alone. Corroboration of the testimony of a child
witness is not a rule but a measure of caution and
prudence. Some discrepancies in the statement of a child
witness cannot be made the basis for discarding the
testimony. Discrepancies in the deposition, if not in material
particulars, would lend credence to the testimony of a child
witness who, under the normal circumstances, would like to
mix-up what the witness saw with what he or she is likely to
imagine to have seen. While appreciating the evidence of the
child witness, the courts are required to rule out the
possibility of the child being tutored. In the absence of any
2 2014 Law Suit (SC) 120
3 (2021) 4 SCC 345
allegation regarding tutoring or using the child witness for
ulterior purposes of the prosecution, the courts have no
option but to rely upon the confidence inspiring testimony
of such witness for the purposes of holding the accused
guilty or not.
6. This Court in Panchhi v. State of U.P4 held that the
evidence of the child witness must be evaluated more
carefully and with greater circumspection because a child is
susceptible to be swayed by what others tell him and thus
an easy prey to tutoring. The evidence of the child witness
must find adequate corroboration before it is relied upon, as
the rule of corroboration is of practical wisdom than of
law (vide Prakash v. State of M.P5; Baby Kandayanathil v.
State of Kerala6; Raja Ram Yadav v. State of
Bihar7; Dattu Ramrao Sakhare v. State of Maharashtra8.
7. To the same effect is the judgment in State of U.P.
v. Ashok Dixit9.
8.............................."
15. It is thus settled in law with respect to the evidence of the child
witness that:
(i) Though the child witnesses are dangerous witnesses as
they are pliable and liable to be influenced easily, shacked and
moulded, but if after careful scrutiny of their evidence the Court
comes to the conclusion that there is an impress of truth in it,
there is no obstacle in the way of accepting the evidence of a
child witness.
ii) The evidence of the child witness cannot be
discriminated only on the ground that of being a tendered age.
iii) The corroboration of a child witness is not a rule but a
measure of caution and prudence,
iv) Some discrepancies in the statement of a child witness
cannot be made the basis for discarding the testimony.
4 (1998) 7 SCC 177
5 (1992) 4 SCC 225
6 1993 Supp (3) SCC 667
7 (1996) 9 SCC 287
8 (1997) 5 SCC 341
9 (2000)3 SCC 70
Discrepancies in the deposition, if not in material particulars,
would lend credence to the testimony of a child witness.
(v) The decision on the question whether the child witness
has sufficient intelligence primarily rests with the trial Judge
who notices his manners, his apparent possession or lack of
intelligence.
(vi) The trial Judge may resort to any examination which
will tend to disclose his capacity and intelligence as well as his
understanding of the obligation of an oath.
(vii) The decision of the trial court may, however, be
disturbed by the higher Court if from what is preserved in the
records, it is clear that his conclusion was erroneous. This
precaution is necessary because child witnesses are amenable
to tutoring and often live in a world of make beliefs.
viii) While appreciating the evidence of the child witness, the
courts are required to rule out the possibility of the child being
tutored.
ix) In the absence of any allegation regarding tutoring or
using the child witness for ulterior purposes of the prosecution,
the courts have no option but to rely upon the confidence
inspiring testimony of such witness for the purpose of holding
the accused guilty or not.
16. With respect to the commission of the offence by the accused, the
victim P.W.2 clearly deposed that on the date and time of the incident,
P.Ws.2 to 5 went to collect plum fruits at Dagguvari Bhavi situated at
Janapadu road. At about 12.00 noon the accused came and caught
hold of her hand. Then the accused took her in the red gram garden
situated 2 fields away from the field where they were collecting plum
fruits. The accused removed the petty coat of P.W.2 forcibly and
attempted to commit rape on her. When P.W.2 raised cries PWs 3 to 5
also came to P.W.2 by raising cries. P.Ws.6 and 7 also came on hearing
the cries and on seeing them the accused slapped PW2 and went away
stating that he will kill PW 2 if she revealed the incident to any body.
17. The evidence of P.W.2, finds corroboration from the evidence of
P.Ws.3 to 5, the child witnesses who categorically deposed that P.W.2 is
her elder sister and P.W.1 is their father and that she knows the
accused. On the date and time of the offence PWs 2 to 5 went to collect
fruits at Dagguvani Bhavi situated at Janapadu road. P.W.4
categorically deposed to have witnessed, while accused removed the
petticoat of PW2 and attempted to commit rape on her and on seeing
them the accused slapped PW 2 and went away. P.W.5 categorically
deposed that the accused took PW 2 to red gram field and tried to
commit rape on her and on hearing the cries of PW2, PWs 3 to 5
reached there and witnessed that the accused removed the petty coat of
PW 2 and fell on her. The independent witnesses P.W.6 and P.W.7
deposed that they found PW 2 was undressed and they took PW 2 and
other children to home.
18. Any discrepancy in the evidence of the child witnesses P.Ws. 3 to
5 could not be shown out by the learned counsel for the revisionst.
19. In the present case, the evidence of the child witnesses P.Ws. 3 to
5 corroborates the testimony of P.W.2, the victim child aged about 8
years and in Class IV on the date of the incident, which is further
corroborated by the evidence of independent witnesses P.Ws.6 and 7 in
material particulars.
20. There is no discrepancy with respect to the time of the incident as
was sought to be argued by Sri T.S.Rayulu. The F.I.R Ex.P.1 mentions
that the offence took place on 29.12.2003 at 12.00 noon. The same is
proved from the evidence of the witnesses. In Dilip Kumar Kurmi vs.
State of Chhattisgarh10, which was a case of conviction for the offence
under Section 376 IPC, and it was urged that there was discrepancy
10 (2019 16 SCC 766
with regard to the date/month of the incident. The Hon‟ble Apex Court
observed that the said discrepancy did not go to the root of the matter
and did not destroy the substratum of the prosecution case. Here also
even if there be any discrepancy with respect to the time of the incident,
the same in the view of this Court does not destroy the substratum of
the prosecution case. The evidence on record of P.W.2 finds
corroboration from the evidence of other witnesses on the fundamental
of the prosecution case of attempt to commit rape.
21. There is no argument regarding tutoring of the child witnesses.
22. The court now deals with the submission of the petitioner‟s
counsel that the offence of „attempt to commit rape‟ is not made out.
23. In State of Madhya Pradesh vs. Mahendra Alias Golu11, it fell
for consideration, whether the offence amounted to attempt to commit
rape within the meaning of Section 376(2)(f) read with Section 511 IPC
or was it a mere preparation which led to outraging the modesty of the
victims. It was held that in every crime, there is first mens rea i.e
intention to commit, secondly preparation to commit and thirdly,
attempt to commit it. Attempt is the execution of mens rea after
preparation. Attempt starts where preparation ends, though it falls
short of active commission of the crime. The preparation or attempt to
commit the offence will be predominately determined on evaluation of
the act and conduct of the accused and as to whether or not the
incident tantamounts to trnassgrassing the thin space between
preparation and attempt. Attempt itself is punishable offence in view of
Section 511 IPC.
24. It is apt to refer paras 11 to 18 of Mahendra Alias Golu (supra)
as under:
11 2021 SCC OnLine SC 965
"11. It is a settled preposition of Criminal Jurisprudence that
in every crime, there is first, Mens Rea (intention to commit),
secondly, preparation to commit it, and thirdly, attempt to commit
it. If the third stage, that is, „attempt‟ is successful, then the crime
is complete. If the attempt fails, the crime is not complete, but law
still punishes the person for attempting the said act. „Attempt‟ is
punishable because even an unsuccessful commission of offence is
preceded by mens rea, moral guilt, and its depraving impact on the
societal values is no less than the actual commission.
12. There is a visible distinction between „preparation‟ and „attempt‟
to commit an offence and it all depends on the statutory edict
coupled with the nature of evidence produced in a case. The stage
of „preparation‟ consists of deliberation, devising or arranging the
means or measures, which would be necessary for the commission
o f the offence. Whereas, an „attempt‟ to commit the offence, starts
immediately after the completion of preparation. „Attempt‟ is the
execution of mens rea after preparation. `Attempt‟ starts where
`preparation‟ comes to an end, though it Page | 9 falls short of
actual commission of the crime.
13. However, if the attributes are unambiguously beyond the
stage of preparation, then the misdemeanours shall qualify to be
termed as an „attempt‟ to commit the principal offence and such
„attempt‟ in itself is a punishable offence in view of Section 511 IPC.
The „preparation‟ or „attempt‟ to commit the offence will be
predominantly determined on evaluation of the act and conduct of
an accused; and as to whether or not the incident tantamounts to
transgressing the thin space between `preparation‟ and „attempt‟. If
no overt act is attributed to the accused to commit the offence and
only elementary exercise was undertaken and if such preparatory
acts cause a strong inference of the likelihood of commission of the
actual offence, the accused will be guilty of preparation to commit
the crime, which may or may not be punishable, depending upon
the intent and import of the penal laws.
14. Section 511 IPC is a general provision dealing with attempts to
commit offences which are not made punishable by other specific
sections of the Code and it provides, inter alia, that, "whoever
attempts to commit an offence punishable by this Code with
imprisonment for life or imprisonment, or to cause such an offence
to be committed, and in such attempt does any act towards the
commission of the offence, shall, where no express provision is
made by this Code for the punishment of such attempt, be
punished with imprisonment of any description provided for the
offence, for a term which may extend to one half of the
imprisonment for life or, as the case may be, one half of the longest
term of imprisonment provided for that offence, or with such fine as
is provided for the offence, or with both".
15. It is extremely relevant at this stage to brush up the elementary
components of the offence of „Rape‟ under Section 375 IPC, as was
in force at the time when the occurrence took place in the instant
case. The definition of „Rape‟, before the 2013 Amendment, used to
provide that "A man is said to commit "rape" who, except in the
case hereinafter excepted, has sexual intercourse with a woman
under circumstances falling under any of the six following
descriptions:--
First.--Against her will.
Secondly.--Without her consent.
Thirdly.--xxx xxx xxx
Fourthly.-- xxx
Fifthly.-- xxx xxx xxx
Sixthly.--With or without her consent, when she is under sixteen
years of age.
Explanation.--Penetration is sufficient to constitute the sexual
intercourse necessary to the offence of rape.
Exception.--Sexual intercourse by a man with his own wife, the
wife not being under fifteen years of age, is not rape."
16. A plain reading of the above provision spells out that sexual
intercourse with a woman below sixteen years, with or without her
consent, amounted to „Rape‟ and mere penetration was sufficient to
prove such offence. The expression „penetration‟ denotes ingress of
male organ into the female parts, however slight it may be. This
Court has on numerous occasions explained what „penetration‟
conveys under the unamended Penal Code which was in force at
the relevant time. In Aman Kumar (supra), it was summarised that:
"7. Penetration is the sine qua non for an offence of rape. In order
to constitute penetration, there must be evidence clear and cogent
to prove that some part of the virile member of the accused was
within the labia of the pudendum of the woman, no matter how
little (see Joseph Lines, IC&K 893)."
17. Even prior thereto, this Court in Madan Lal vs. State of
J&K2 opined that the degree of the act of an accused is notably
decisive to differentiate between „preparation‟ and „attempt‟ to
commit rape. It was held thus:
"12. The difference between preparation and an attempt to commit
an offence consists chiefly in the greater degree of determination
and what is necessary to prove for an offence of an attempt to
commit rape has been committed is that the accused has gone
beyond the stage of preparation. If an accused strips a girl naked
and then making her lie flat on the ground undresses himself and
then forcibly rubs his erected penis on the private parts of the girl
but fails to penetrate the same into the vagina and on such rubbing
ejaculates himself then it is difficult for us to hold that it was a case
of merely assault under Section 354 IPC and not an attempt to
commit rape under Section 376 read with Section 511 IPC. In the
facts and circumstances of the present case the offence of an
attempt to commit rape by the accused has been clearly established
and the High Court rightly convicted him under Section 376 read
with Section 511 IPC."
18. The difference between `attempt‟ and `preparation‟ in a rape
case was again elicited by this Court in Koppula Venkat Rao vs.
State of A.P.3, laying down that: "10. An attempt to commit an
offence is an act, or a series of acts, which leads inevitably to the
commission of the offence, unless something, which the doer of the
act neither foresaw nor intended, happens to prevent this. An
attempt may be described to be an act done in partexecution of a
criminal design, amounting to more (2004) 3 SCC 602 Page | 13
than mere preparation, but falling short of actual consummation,
and, possessing, except for failure to consummate, all the elements
of the substantive crime. In other words, an attempt consists in it
the intent to commit a crime, falling short of, its actual commission
or consummation/completion. It may consequently be defined as
that which if not prevented would have resulted in the full
consummation of the act attempted. The illustrations given
in Section 511 clearly show the legislative intention to make a
difference between the cases of a mere preparation and an
attempt".
25. In Chaitu Lal Vs. State of Uttarakhand12, it was pleaded that
the actions of the accused did not constitute the offence under Section
511 read with Section 376 IPC, as the accused had not committed any
overt act, such as any attempt to undress himself in order to commit
the alleged act. The Hon‟ble Apex Court held that the attempt to commit
an offence begins when the accused commences to do an act with the
necessary intention. The Apex Court referred to its earlier judgment in
12 2019 LawSuit (SC) 1884
the case Aman Kumar and Anr. v. State of Haryana,13 in which it
was held that in order to find an accused guilty of an attempt with
intent to commit a rape, court has to be satisfied that the accused,
when he laid hold of the prosecutrix, not only desired to gratify his
passions upon her person, but that he intended to do so at all events,
and notwithstanding any resistance on her part; and in view of the
evidence in that case, held that had there been no intervention, the
accused would have succeeded in executing his criminal design. The
conduct of the accused was indicative of his definite intention to commit
the offence.
26. It is apt to refer paras 8 to 11 of Chaitu Lal (supra):
"8. The counsel of the accused appellant has pleaded that the
actions of the accused appellant do not constitute the offence
under Section 511 read with Section 376, as the accused appellant
had not committed any overt act such as; any attempt to undress
himself in order to commit the alleged act. This Court in the case
of Aman Kumar and Anr. v. State of Haryana, (2004) 4 SCC 379 held
that "11. In order to find an accused guilty of an attempt with intent
to commit a rape, court has to be satisfied that the accused, when he
laid hold of the prosecutrix, not only desired to gratify his passions
upon her person, but that he intended to do so at all events, and
notwithstanding any resistance on her part..."
9. The attempt to commit an offence begins when the accused
commences to do an act with the necessary intention. In the present
case, the accused appellant pounced upon the complainant victim,
sat upon her and lifted her petticoat while the complainant victim
protested against his advancements and wept. The evidence of the
daughter (P.W.2) also reveals that she pleaded with the accused -
appellant to spare her mother. In the meantime, hearing such
commotion, other villagers intervened and threatened the accused of
dire consequences pursuant to which the accused ran away from the
scene of occurrence. Here, the evidence of independent witness
Sohan Lal (P.W.4) assumes significance in corroborating the events
on the date of occurrence, wherein he has averred that at around
10:00 p.m, he heard noise coming from the house of complainant
13 (2004) 4 SCC 379
victim, pursuant to which he saw the accused appellant‟s wife
holding his neck coming out from the house of the complainant
victim. P.W.4 had also overheard the complainant victim
complaining that the accused appellant was quarreling with her.
10. Herein, although the complainant victim and her daughter were
pleading with the accused to let the complainant victim go, the
accused appellant did not show any reluctance that he was going to
stop from committing the aforesaid offence. Therefore, had there been
no intervention, the accused appellant would have succeeded in
executing his criminal design. The conduct of the accused in the
present case is indicative of his definite intention to commit the said
offence.
11. The counsel on behalf of the accused appellant placed reliance
upon the case of Tarkeshwar Sahu v. State of Bihar (Now Jharkhand),
(2006) 8 SCC 560 to claim the benefit of acquittal for offence
under Section 511 read with Section 376 of IPC. But, on careful
perusal of the aforesaid decision in the backdrop of facts and
circumstances of the present case, both the cases are distinguishable
as in the case cited above, it is clearly noted that the accused failed at
the stage of preparation of commission of the offence itself. Whereas,
in the present case before us the distinguishing fact is the action of
the accused appellant in forcibly entering the house of the
complainant victim in a drunken state and using criminal force to lift
her petticoat despite her repeated resistance."
27. In view of the concurrent findings recorded by both the courts
below, based on the evidence on record, as also looking into the
evidence on record of P.Ws.2 to 7 this Court finds that the act and
conduct of the accused is indicative of his definite intention to commit
rape and if there had been no intervention, on the cries of P.W.2 the
victim, and if P.Ws. 3 to 5 and 6 to 7 had not reached the spot, the
accused would have succeeded in executing his criminal desire.
28. The learned courts below have concurrently recorded the guilt of
the accused for the offence under Section 376 read with Section 511
IPC on due consideration of the evidence on record, which could not be
shown to be suffering from any infirmity so as to attract the exercise of
revisional jurisdiction. The accused has rightly been convicted under
Section 376 read with Section 511 IPC.
29. On the point of leniency in punishment, it is apt to refer the
judgment in State of Madhya Pradesh vs. Suresh14, wherein the
Hon‟ble Supreme Court held that awarding of just and adequate
punishment to the wrongdoer in case of proven crime remains a part of
duty of the court. Paras 11 to 14 reads as under:
"11. In the case of State of M.P. v. Ganshyam : (2003) 8 SCC 13,
relating to the offence punishable under Section 304 Part I IPC ,
this Court found sentencing for a period of 2 years to be to
inadequate and even on the liberal approach, found the custodial
sentence of 6 years serving the ends of justice. This Court
underscored the principle of proportionality in prescribing liability
according to the culpability; and while also indicating the societal
angle of sentencing, cautioned that undue sympathy leading to
inadequate sentencing would do more harm to the justice system
and undermine public confidence in the efficacy of law. This Court
observed, inter alia, as under:
"12. Therefore, undue sympathy to impose inadequate
sentence would do more harm to the justice system to
undermine the public confidence in the efficacy of law
and society could not long endure under such serious
threats. It is, therefore, the duty of every court to award
proper sentence having regard to the nature of the
offence and the manner in which it was executed or
committed etc. This position was illuminatingly stated by
this Court in Sevaka Perumal v. State of Tamil Nadu:
(1991) 3 SCC 471.
13. Criminal law adheres in general to the principle of
proportionality in prescribing liability according to the
culpability of each kind of criminal conduct. It ordinarily
allows some significant discretion to the Judge in arriving
at a sentence in each case, presumably to permit
sentences that reflect more subtle considerations of
culpability that are raised by the special facts of each
case. Judges, in essence, affirm that punishment ought
always to fit the crime; yet in practice sentences are
determined largely by other considerations. Sometimes it
is the correctional needs of the perpetrator that are
offered to justify a sentence, sometimes the desirability of
keeping him out of circulation, and sometimes even the
14 (2019) 14 SCC 151
tragic results of his crime. Inevitably, these
considerations cause a departure from just deserts as the
basis of punishment and create cases of apparent
injustice that are serious and widespread.
14. Proportion between crime and punishment is a goal
respected in principle, and in spite of errant notions, it
remains a strong influence in the determination
of sentences. The practice of punishing all serious crimes
with equal severity is now unknown in civilized societies,
but such a radical departure from the principle of
proportionality has disappeared from the law only in
recent times. Even now for a single grave infraction
drastic sentences are imposed. Anything less than a
penalty of greatest severity for any serious crime is
thought then to be a measure of toleration that is
unwarranted and unwise. But in fact, quite apart from
those considerations that make punishment unjustifiable
when it is out of proportion to the crime, uniformly
disproportionate punishment has some very undesirable
practical consequences.
15. After giving due consideration to the facts and
circumstances of each case, for deciding just and
appropriate sentence to be awarded for an offence, the
aggravating and mitigating factors and circumstances in
which a crime has been committed are to be delicately
balanced on the basis of really relevant circumstances in
a dispassionate manner by the court. Such act of
balancing is indeed a difficult task. It has been very aptly
indicated in Dennis Councle MCGautha v. State of
California: 402 US 183: 28 L Ed 2d 711 (1071) that no
formula of a foolproof nature is possible that would
provide a reasonable criterion in determining a just and
appropriate punishment in the infinite variety of
circumstances that may affect the gravity of the crime. In
the absence of any foolproof formula which may provide
any basis for reasonable criteria to correctly assess
various circumstances germane to the consideration of
gravity of crime, the discretionary judgment in the facts
of each case is the only way in which such judgment may
be equitably distinguished.
17. 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 a view
merely on account of lapse of time in respect of such
offences will be result-wise counterproductive in the long
run and against societal interest which needs to be cared
for and strengthened by a string of deterrence inbuilt in
the sentencing system.
19. Similar view has also been expressed in Ravji v. State
of Rajasthan: (1996) 2 SCC 175. It has been held in the
said case that it is the nature and gravity of the crime but
not the criminal, which are germane for consideration of
appropriate punishment in a criminal trial. The court will
be failing in its duty if appropriate punishment is not
awarded for a crime which has been committed not only
against the individual victim but also against the society
to which the criminal and victim belong. The punishment
to be awarded for a crime must not be irrelevant but it
should conform to and be consistent with the atrocity
and brutality with which the crime has been perpetrated,
the enormity of the crime warranting public abhorrence
and it should "respond to the society‟s cry for justice
against the criminal". ......" (underlining supplied for
emphasis)
12. In Alister Anthony Pareira (supra), the allegations against
the appellant had been that while driving a car in drunken
condition, he ran over the pavement, killing 7 persons and causing
injuries to 8. He was charged for the offences under Sections 304
Part II and 338 IPC; was ultimately convicted by the High Court
under Sections 304 Part II, 338 and 337 IPC; and was sentenced to
3 years' rigorous imprisonment with a fine of Rs. 5 lakhs for the
offence under Section 304 Part II IPC and to rigorous imprisonment
for 1 year and for 6 months respectively for the offences
under Section 338 and 337 IPC . Apart from other contentions, one
of the pleas before this Court was that in view of fine and
compensation already paid and willingness to make further
payment as also his age and family circumstances, the appellant
may be released on probation or his sentence may be reduced to
that already undergone. As regards this plea for modification of
sentence, this Court traversed through the principles of penology,
as enunciated in several of the past decisions1 and, while observing
that the facts and circumstances of the case show 'a despicable
aggravated offence warranting punishment proportionate to the
crime', this Court found no justification for extending the benefit of
probation or for reduction of sentence. On the question of
sentencing, this Court re-emphasised as follows:-
"84. Sentencing is an important task in the matters of crime. One of
the prime objectives of the criminal law is imposition of appropriate,
adequate, just and proportionate sentence commensurate with the
nature and gravity of crime and the manner in which the crime is
done. There is no straitjacket formula for sentencing an accused on
proof of crime. The courts have evolved certain principles: the twin
objective of the sentencing policy is deterrence and correction. What
sentence would meet the ends of justice depends on the facts and
circumstances of each case and the court must keep in mind the
gravity of the crime, motive for the crime, nature of the offence and
all other attendant circumstances.
85. The principle of proportionality in sentencing a crime-doer is
well entrenched in criminal jurisprudence. As a matter of law,
proportion between crime and punishment bears most relevant
influence in determination of sentencing the crime-doer. The court
has to take into consideration all aspects including social interest
and consciousness of the society for award of appropriate sentence.
13. Therefore, awarding of just and adequate punishment to the
wrong doer in case of proven crime remains a part of duty of the
Court. The punishment to be awarded in a case has to be
commensurate with the gravity of crime as also with the relevant
facts and attending circumstances. Of course, the task is of striking
a delicate balance between the mitigating and aggravating
circumstances. At the same time, the avowed objects of law, of
protection of society and responding to the society's call for justice,
need to be kept in mind while taking up the question of sentencing
in any given case. In the ultimate analysis, the proportion between
the crime and punishment has to be maintained while further
balancing the rights of the wrong doer as also of the victim of the
crime and the society at large. No strait jacket formula for
sentencing is available but the requirement of taking a holistic view
of the matter cannot be forgotten.
14. In the process of sentencing, any one factor, whether of
extenuating circumstance or aggravating, cannot, by itself, be
decisive of the matter. In the same sequence, we may observe that
mere passage of time, by itself, cannot be a clinching factor though,
in an appropriate case, it may be of some bearing, along with other
relevant factors. Moreover, when certain extenuating or mitigating
circumstances are suggested on behalf of the convict, the other
factors relating to the nature of crime and its impact on the social
order and public interest cannot be lost sight of."
30. In Rahey Shyam vs. State15, the High Court of Judicature at
Allahabad held that in the matter of awarding punishment multiple
factors have to be considered. The law regulates social interests,
arbitrates conflicting claims and demands. Security of individuals as
well as property of individuals is one of the essential functions of the
State. The administration of criminal law justice is a mode to achieve
this goal. The inherent cardinal principle of criminal administration of
justice is that the punishment imposed on an offender should be
adequate so as to serve the purpose of deterrence as well as
reformation. It should reflect the crime, the offender has committed
and should be proportionate to the gravity of the offence. Sentencing
process should be sterned so as to give a message to the offender as
well as the person like him roaming free in the society not to indulge in
criminal activities but also to give a message to society that an offence if
committed, would not go unpunished. The offender should be suitably
punished so that society also get a message that if something wrong has
been done, one will have to pay for it in proper manner irrespective of
time lag.
31. The trial court imposed the sentence of five years R.I which has
been reduced by the appellate court to four years R.I. I do not find any
reason justification to take a further lenient view to reduce the sentence
for such a heinous offence under Section 376 read with Section 511 IPC
committed on the minor girl of about 8 years.
32. For all the aforesaid reasons, I do not find any illegality in the
impugned order. The revision lacks merit and deserves to be dismissed.
33. The criminal revision is hereby dismissed.
15 2019 SCC OnLine All 4962
34. The revisionst is on bail. The bail is cancelled. The trial court is
directed to ensure that the revisionst is sent to the prison to serve the
remaining period of the sentence as imposed upon him by appellate
court.
35. Let a copy of this judgment with the record of the court below be
forthwith sent to the court below for compliance.
Consequently, the Miscellaneous Petitions, if any, shall also stand
closed.
_________________________
RAVI NATH TILHARI, J
Date:08.04.2022.
Gk.
HON'BLE SRI JUSTICE RAVI NATH TILHARI
CRIMINAL REVISION CASE No.645 OF 2007
Date:08.04.2022.
Gk
