Barkatullakha vs State Of Maharashtra
2001 Latest Caselaw 502 Bom

JUDGMENT

R.K. Batta, J.

1. The applicant was tried for rape of prosecutrix aged about 14 years, under Section 376, I.P.C. By judgment dt. 2-12-1993, the Assistant Judge, Khamgaon held the applicant guilty under Section 376, I.P.C. and sentenced him to suffer R.I. for 7 years and to pay fine of Rs. 7000/-, in default, further R.I. for 1 year. On the point of sentence, the trial Court has taken into consideration the fact that. Section 376 provides for a minimum sentence of 7 years, as also the fact that the prosecutrix was 14/15 years at the time of offence in question.

2. The applicant was 35 years old and had 5 children. Taking into consideration all these facts the learned Assistant Judge, awarded the sentence as aforesaid. The applicant filed appeal against the said conviction and sentence, and the learned Additional Sessions Judge, Khamgaon by judgment dt. 11-6-1997 converted the conviction from one under Section 376, I.P.C. to 376 r/w Section 511, I.P.C. Accordingly he sentenced the applicant to suffer R.I. for 2 years with fine of Rs. 7000/-, in default R.I. for 1 year. The learned Additional Sessions Judge, had examined the question of imposing minimum sentence of 31/2 years on the applicant, but was of the opinion that sentence of 2 years of R.I. and sentence of fine of Rs. 7000/- would meet the ends of justice. The applicant not satisfied with the judgment of the learned Additional Sessions Judge, has approached this Court in Revision seeking to set aside the said conviction and sentence imposed on him by the learned Additional Sessions Judge, Khamgaon.

3. In this case, exercising suo motu powers under Section 397 read with 401 of Cr. P.C. a notice was given to the applicant as to why the sentence should not be enhanced. Notice has been duly served on the applicant.

4. The learned Advocate for the applicant urged before me, that the evidence of the prosecutrix is inherently unbelievable and that it does not get any corroboration from any quarter; that the prosecution did not examined the younger brothers and sister of the prosecutrix who were present; that there was delay in lodging F.I.R.; the identity of the applicant could not be satisfactorily established; that except for production of panchnama of the cycle which is reported to have been attached from the scene of offence, the name on the said cycle has not been established by the prosecution; that even though the prosecutrix states that she had received injuries, no injuries were found on her person, and that no question was put to the applicant in his statement under Section 313 of Cr. P.C. regarding name on the cycle and as such, the evidence in that behalf cannot be looked into. After placing reliance on 1989 Cri LJ 394 (Bombay) (Ravindra D. Patil v. State of Maharashtra), it was urged that no case of even attempt to rape had been made out and the mere evidence relating to the Hymen being torn, is of no consequence. He, therefore, contended that the applicant be acquitted. Alternatively on the question of sentence, it was argued that the incident took place way back in the year 1990, after which 11 years have passed, that the applicant has a family consisting of his wife and children; that the applicant has already undergone 8/9 months' imprisonment and has paid fine, and that the applicant be released for having already undergone imprisonment. In respect of enhancement, it was urged that no case whatsoever is there for enhancing the sentence.

5. Learned A.P.P. on the other hand argued that though there is evidence of commission of crime of rape, yet the prosecution has failed to seek any redressal in respect of the judgment of the Additional Sessions Judge, vide which he had converted the crime from rape to attempt to rape, still in the circumstance and evidence on record, the Additional Sessions Judge, should have passed the minimum sentence of 31/2 years, for the offence in question, and that there are no extenuating circumstances to impose sentence, less than minimum which is prescribed in law. The learned A.P.P. placed before me number of rulings of the Apex Court and urged that not only the revision be dismissed, but the sentence imposed on the applicant be enhanced to 31/2 years imprisonment, which is the minimum as prescribed in law.

6. Coming to the contention of the learned Advocate for the applicant relating to the corroboration of version of prosecutrix, the law is now well settled with the pronouncement of several judgments by the Apex Court. On this aspect the Apex Court in (Bharwada Bhoginbai Hirjibhai v. State of Gujarat), has made the following observations on this aspect:

Corroboration is not the sine qua non for a conviction in a rape case. In the Indian setting, refusal to act on the testimony of a victim of sexual assault in the absence of a corroboration as a rule is adding insult to injury. Why should 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? To do so is to justify the charge of male chauvinism in a male dominated society.

A girl or a 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 even occurred. She would be conscious of the danger of being ostracized by the society or being looked down by the society including by her own family members, relatives, friends and neighbours. She would face the risk of losing the love and respect of her own husband and near relatives, and of her matrimonial home and happiness being shattered. If she is unmarried, she would apprehend that it would be difficult to secure an alliance with a suitable match from a respectable or an acceptable family. In view of these and similar factors the victim and their relatives are not too keen to bring the culprit to book. And when in the face of these factors the crime is brought to light there is a built-in-assurance that the charge is genuine rather than fabricated.

On principle the evidence of a victim of sexual assault stands on par with evidence of injured witness. Just as a 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 a victim of a sex-offence is entitled to great weight, absence of corroboration notwithstanding. And while corroboration in the form of eye-witness account of an independent witness may often be forthcoming in physical assault cases, such evidence cannot be expected in sex offences, having regard to the very nature of the offence. It would, therefore, be adding insult to injury to insist the corroboration drawing inspiration from the rules devised by the Courts in the Western World. If the evidence of the victim does not suffer from any basic infirmity, and the "probabilities factor" does not render it unworthy of credence, as a general rule, there is no reason to insist on corroboration except from the medical evidence, where, having regard to the circumstances, of the case, medical evidence can be expected to be forthcoming subject to the following qualification. Corroboration may be insisted upon when a woman having attained majority is found in a compromising position and there is a likelihood of her having levelled such an accusation on account of the instinct of self-preservation. Or when the "probabilities-factor" is found to be out of tune.

7. In (State of Maharashtra v. Chandra-prakash Kewalchand Jain), the law laid down by the Apex Court in B. Bhoginbhai Hirjtbhai v. State of Gujarat (1983 Cri LJ 1096) (supra) was reiterated, and it has been laid down that there is no rule of law or practice incorporated in the Evidence Act which requires it to look for corroboration of the version of the prosecutrix and if for some reason the Court is hesitant to place implicit reliance on the testimony of the prosecutrix, it may look for evidence which may lend assurance to her testimony short of corroboration required in the case of accomplice. It is pertinent to note the following observations of the Apex Court on this aspect (Para 17).

To insist on corroboration except in the rarest of rare case is to equate a woman who is a victim of the lust of another with an accomplice to a crime and thereby insult womanhold. It would be adding insult to injury to tell a woman that her story of woe will not be believed unless it is corroborated in material particulars as in the case of an accomplice to a crime. Ours is a conservative society where it concerns sexual behaviour. Ours is not a permissible society as in some of the Western and European countries. Our standard of decency and morality in public life is not the same as in those countries. It is, however, unfortunate that respect for womanhood in our country is on the decline and cases of molestation and rape are steadily growing. An Indian woman is now required to suffer indignities in different forms, from lewd remarks to eveteasing, from molestation to rape. Decency and morality in public life can be promoted and protected only if the Courts deal strictly with those who violate the societal norms. The standard of proof to be expected by the Court, in such cases must take into account the fact that such crimes are generally committed on the sly and very rarely direct evidence of a person other than the prosecutrix is available. Courts must also realize that ordinarily a woman, moreso a young girl, will not stake her reputation by levelling a false charge concerning her chastity.

8. In (State of Punjab v. Gurmeet), the Apex Court has laid down as under (Paras 7 and 20) :

The testimony of the victim of sexual assault is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the Courts should find no difficulty in acting on the testimony inspires confidence and is found to be reliable. Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. Why should the evidence of a girl or a woman who complains of rape or sexual molestation, be viewed with doubt, disbelief of suspicion? The Court while appreciating the evidence of a prosecutrix may look for some assurance of her statement to satisfy its judicial conscience, since she is a witness who is interested in the outcome of the charge levelled by her, but there is no requirement of law to insist upon corroboration of her assault stands almost on a par with the evidence of an injured witness and to an extent is even more reliable. Just as a witness who has sustained some injury in the occurrence, which is not found to be self-inflicted, is considered to be a good witness in the sense that, he is least likely to shield the real culprit, the evidence of a victim of a sexual offence is entitled to great weight, absence of corroboration notwithstanding. Corroborative evidence is not an imperative component of judicial credence in every case of rape. Corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under given circumstances. It must not be overlooked that a woman or a girl subjected to sexual assault is not an accomplice to the crime but is a victim of another person's lust and it is improper and undesirable to test her evidence with a certain amount of suspicion, treating her as if she were an accomplice. Inference have to be drawn from a given sets of facts and circumstances with realistic diversity and not dead uniformity test that type of rigidity in the shape of rule of law is introduced through a new form of testimonial tyranny making justice a casualty. Courts cannot cling to a fossil formula and insist upon corroboration even if, taken as a whole, the case spoken of by the victim of sex crime strikes the Judicial mind as probable.

Of late, crime against women in general and rape in particular is on the increase. It is an irony that while we are celebrating women's right in all spheres, we show little or no concern for her honour. It is a sad reflection of the attitude of indifference of the society towards the violation of human dignity of the victims of sex crimes. A rapist not only violates the victim's privacy and personal integrity, but inevitably causes serious psychological us well as physical harm, in the process. Rape is not merely a physical assault -- it is often destructive of the whole personality of the victim. A murderer destroys the physical body of his victim, a rapist degrades the very soul of the helpless female. The Courts, therefore, shoulder a great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity. The Courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case. If evidence of the prosecutrix inspires confidence it must be relied upon without seeking corroboration of her statement in material particulars. If for some reasons the Court finds it difficult to place implicit reliance on her testimony it may look for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial Court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations.

9. In (State of Rajasthan v. N.K.), the Apex Court has laid down that the evidence of the prosecutrix that she was forcibly subject to sexual intercourse should be normally believed unless there is material leading to inference of her consent. Absence of marks of external injuries on the person of the prosecutrix by itself is not sufficient to draw inference of the prosecutrix.

10. In the case under consideration, the prosecutrix in clear terms deposed that the applicant had initially caught her sister Usha, and gave her slaps due to which she intervened to rescue her sister-Usha, the applicant caught hold the prosecutrix and took her to nala. The applicant then removed her peticot and also removed her blouse, as also his pant and had intercourse with her. She has further stated that the applicant gave her jerk and also pressed her, and she cried due to the applicant having intercourse with her, She has further stated that when her father came there, the applicant ran away from the scene of offence. This evidence of the prosecutrix gets corroboration from the evidence of Dr, Subhadra P.W.2, who has stated that she has examined the prosecutrix on 17-4-1998 at 10 a.m. The Incident had taken place on previous day at about 2 p.m. She found that hymen of the prosecutrix was torn and red and inflamed and redness was seen over the vaginal orifice and labia minora, and that there was clear pain visible on the touch. According to her the age of the prosecutrix was 14 to 15 years, and that she was not used to sexual intercourse. She further stated that rape might have taken place 24 hours before the examination. However, the isolated sentence in her deposition that in her opinion it was attempted rape, was taken into account by the learned Additional Sessions Judge, and he did not appreciate the evidence of Doctor as a whole as a result of which he recorded the finding of attempt to rape. Unfortunately the prosecution did not file any appeal in this behalf, and it is the applicant who has come before this Court in revision challenging his conviction under Section 376 read with 511, I.P.C.

11. In addition to the medical evidence there is also corroboration of the version of the prosecutrix as the case of the prosecution is that the applicant had come on cycle and had ran away leaving the cycle. Cycle was attached and, on this cycle there was name of the applicant. The learned Advocate for the applicant has stated that name on the cycle has not been established during the deposition of the victim and that there is even no question put in 313 statement to the applicant. The spot panchnama was duly proved, in respect of the attachment of the cycle which bore the name of the accused. Question Nos. 19 to 21, in the statement of the accused under Section 313, Cr. P.C. were put in relation to the cycle, as also that the cycle bore the name of the applicant. Thus there is no merit in the submission of the learned Advocate for the applicant, that the applicant was not questioned under Section 313 of Cr. P.C in respect of the said cycle.

12. The non-examination of Usha, has no material bearing in the matter. The learned Advocate for the applicant also attacked the prosecution's case on the ground of identity of the applicant, and urged before me, that it would be difficult for the prosecutrix to identify the applicant in the Court after such a long time. It is not a case where the prosecutrix had seen the applicant, for a moment. She had seen the applicant for quite some time and in case where the girl is violated, the picture of the violator always remains in her eyes and is not obliterated from the mind of the prosecutrix on account of the heinous nature of the crime which leaves permanent psychological scars. I also do not find any merit in the submission of the learned Advocate for the applicant, in relation to the delay in filing F.I.R. Some delay is bound to be there in such matter, but in this case, in my opinion, the matter was promptly reported, within a few hours of the incident.

13. After scrutiny of the evidence on record, and considering the arguments advanced by the learned Advocate for the applicant, I do not find any merit whatsoever in this revision.

14. Coming to the enhancement of the sentence, the learned Advocate for the applicant has urged before me that the period of imprisonment already undergone be considered sufficient in the circumstances of the case, and there is no case for enhancement at all. In support of his submission he stated that incident took place 11 years ago, the applicant has wife and children and he has already undergone 8/9 months' imprisonment. For the offence under Section 376, I.P.C. adequate and special reasons are required to be recorded. The Apex Court has laid down in Kamal Kishore v. State of H.P., 2000 Cri LJ 2292. that as the Parliament had disfavoured the sentence to plummet below the minimum limit prescribed. Parliament used the expression "shall not be less than" which is peremptory in tone; the Court has normally no discretion even to award sentence which is less than the said minimum; nonetheless the Parliament was not oblivious of certain very exceptional situations, and hence to meet extremely rare contingency it made departure from the strict rule by conferring a discretion on the Court subject to two conditions -- one is that there should be "adequate and special reasons" and other is such reasons should be mentioned in the Judgment. The Apex Court, has further observed that the expression "adequate and special reasons" indicates that it is not enough to have special reasons nor adequate reasons, but there should be conjunction of both for enabling the Court to invoke the discretion. Reasons which are general or common in many cases cannot be regarded as a special reasons. The Apex Court then observed that what the Division Bench of the High Court mentioned that occurrence took place 10 years ago and the accused might have settled in life, are not special to the accused in this case or to the situation in this case. Such reasons can be noticed in many other cases and hence they cannot be regarded as special reasons. The applicant is a mature and married person and committed rape of prosecutrix who is below age of 16 years. Therefore, I do not find any merit in the submission of the learned Advocate for the applicant, that the sentence already undergone be considered sufficient. On the contrary, I am of the opinion that this is a case where minimum sentence prescribed in law should have been awarded by the learned Additional Sessions Judge, i.e. to say 31/2 years of imprisonment. In fact number of judgments have been relied by the learned A.P.P. wherein the Apex Court had increased the sentence, wherein the minimum prescribed without any special and adequate reasons had not been awarded by the Courts below. Two of the said judgments are State of A.P. v. Bodem ; State of Karnataka v. Krishnappa .

15. In the light of the above, while dismissing the revision, I order enhancement of sentence from 2 years' R.I. to 31/2 years' R.I., while maintaining the fine and sentence in default of fine. The applicant shall be entitled to set off under Section 428 of the term of imprisonment already undergone, as recorded in the judgment dt. 11-7-1997 of the Additional Sessions Judge, Khamgaon. The applicant shall surrender before the competent court, for serving the sentence within a period of 3 weeks. In case the applicant does not surrender within this period, the Court shall take coercive measure in addition to forfeiture of bail bonds.