Karnataka High Court
Althaf @ Blade Althaf vs The State By on 2 February, 2022
Bench: B.Veerappa, M G Uma
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CRL.A No. 766 of 2019
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 02ND DAY OF FEBRUARY, 2022
PRESENT
THE HON'BLE MR. JUSTICE B.VEERAPPA
AND
THE HON'BLE MRS. JUSTICE M.G.UMA
CRIMINAL APPEAL No.766 OF 2019
BETWEEN:
1. ALTHAF @ BLADE ALTHAF,
S/O SHARIF SAB,
AGED ABOUT 35 YEARS,
NEAR KUDURE LAYA,
SLATOR HOUSE, 'A' STREET,
SHIVAJINAGAR,
BENGALURU-560001.
...APPELLANT
(BY SRI. SURESH H S., ADVOCATE)
Digitally AND:
signed by
MALATESH
KC 1. THE STATE BY
Location: SHIVAJINAGAR POLICE STATION,
High Court
of Karnataka REPT. BY SPP,
HIGH COURT OF KARNATAKA,
BENGALURU-560001.
...RESPONDENT
(BY SRI VIJAYKUMAR MAJAGE, ADDITIONAL STATE PUBLIC
PROSECUTOR)
****
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
374(2) OF CR.P.C PRAYING TO SET ASIDE THE JUDGMENT OF
CONVICTION AND ORDER OF SENTENCE DATED 01.08.2002
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CRL.A No. 766 of 2019
PASSED BY THE X ADDITIONAL SESSIONS JUDGE, BENGALURU
CITY, IN S.C.NO.440/2001 - CONVICTING THE APPELLANT/
ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTION
376 OF INDIAN PENAL CODE.
THIS CRIMINAL APPEAL COMING ON FOR HEARING THIS
DAY, B.VEERAPPA J., DELIVERED THE FOLLOWING:
JUDGMENT
The present Criminal Appeal is filed by the appellant/
accused against the judgment of conviction and order of
sentence dated 01.08.2002 passed in S.C.No.440/2001 on the
file of the X Additional Sessions Judge, Bengaluru City (CH-26),
sentencing the accused to undergo imprisonment for life for the
offence punishable under Section 376 of the Indian Penal Code
and to pay fine of `10,000/-, in default, to undergo rigorous
imprisonment for a period of one year.
2. It is the case of the prosecution that on 19.03.2001,
between 6.30 to 7.30 am, the accused allured of giving
chocolate to the minor victim girl aged 5 ½ years, took her
behind the Corporation Hafeeza School situated at Cockburn
Road, Shivajinagara, and committed forcible sexual intercourse
(rape) on her. On the complaint given by P.W.1-Mehboob,
CRL.A No. 766 of 2019
father of the minor victim girl as per Ex.P.1, the jurisdictional
police registered a criminal case in Crime No.54/2001 for the
offence punishable under Section 376 of the Indian Penal Code.
3. After investigation, the Investigating Officer filed Charge
Sheet against the accused for the offence punishable under
Section 376 of the Indian Penal Code. After committal of the
matter, the learned Sessions Judge secured the presence of the
accused, framed the charge, read over it to the accused in the
language known to him, who pleaded not guilty and claimed to
be tried.
4. In order to prove its case, the prosecution, examined in
all 13 witnesses as P.Ws.1 to 13 and marked the documents
Exs.P.1 to P.15 and Material Objects M.Os.1 to 7. After
completion of the evidence of prosecution witnesses, the
statement of the accused as contemplated under Section 313 of
the Code of Criminal Procedure was recorded. The accused
denied all the incriminating circumstances adduced against him.
5. Based on the aforesaid pleadings, the learned Sessions
Judge framed the point for consideration. After considering
both oral and documentary evidence on record, the learned
CRL.A No. 766 of 2019
Sessions Judge, answered the point in the affirmative holding
that the prosecution has proved beyond reasonable doubt that,
on 19.03.2001 between 6.30 am to 7.30 am, the accused
committed rape on the minor girl aged about 5½ years and
thereby, committed an offence punishable under Section 376 of
the Indian Penal Code. Accordingly, by the impugned judgment
of conviction and order of sentence, the learned Sessions
Judge, sentenced the accused to undergo imprisonment for life
and to pay fine of `10,000/-, in default, to undergo rigorous
imprisonment for a period of one year. Hence, the present
Criminal Appeal is filed by the accused through Legal Services
Authority.
6. We have heard the learned counsel for the parties.
7. Sri Suresh H.S. learned counsel for the appellant/accused
contended with vehemence that the impugned judgment of
conviction and order of sentence passed by the learned
Sessions Judge sentencing the accused to undergo
imprisonment for life for the offence punishable under Section
376 of the Indian Penal Code and to pay fine of `10,000/- is
erroneous, contrary to the material on record, cannot be
CRL.A No. 766 of 2019
sustained and is liable to be set-aside. Learned counsel further
contended that the entire case of the prosecution is based on
circumstantial evidence. Absolutely there is no material
connecting the accused to the alleged offence. The Trial Court
erroneously convicted the accused. The evidence of P.Ws.1, 3,
4 and 10 are inconsistent. They are the relatives of the
complainant and are highly interested witnesses. He further
contended that the complaint as per Ex.P.1 lodged by P.W.1 is
against an unknown person. After apprehending the accused,
he was falsely implicated in the offence. Learned counsel
further contended that the evidence of P.Ws.6 and 10 are
contrary to each other and the occurrence of the alleged
incident itself is doubtful. The prosecution failed to establish
the recovery of incriminating articles at the instance of the
accused. Except the evidence of P.W.10-minor victim girl,
there is no other corroborative evidence to implicate the
accused in the offence. In the absence of any material
produced by the prosecution to prove the alleged offence of
rape against the accused, the impugned judgment of conviction
and order of sentence cannot be sustained. He further submits
that the accused has already served sentence for more than 20
CRL.A No. 766 of 2019
years and an opportunity to reform himself has to be given and
therefore, sought to allow the Criminal Appeal.
8. In support of his contentions, learned counsel for the
accused relied on the following judgments:
(i) State of Himachal Pradesh vs. Manga
Singh reported in (2019)16 SCC 759.
(ii) Ashok Debbaram alias Achak Debbaram
vs State of Tripura reported in (2014)4
SCC 747.
9. Per contra, Sri Vijayakumar Majage, learned Additional
State Public Prosecutor for the respondent/State, while
justifying the impugned judgment of conviction and order of
sentence, contended that an unfortunate incident occurred on
19.03.2001 and on the same day complaint was lodged and the
accused was apprehended on 30.03.2001. The evidence of
doctors i.e., P.Ws.2, 5 and 11 clearly depict that the minor
victim girl sustained grievous injuries on her private part. The
same is corroborated by the evidence of P.W.10-minor victim
girl, P.W.1-Mehabooba (father of the victim girl), P.W.3-
Smt.Jahida (mother of the victim girl), P.W.6-Nissar Ahmed,
CRL.A No. 766 of 2019
watchman of the school who had seen the accused with victim
girl, P.W.4-Devamma, neighbour who had seen the accused
taking the minor victim girl to the backside of the school and
the evidence of P.W.10-the victim girl. Based on the evidence
of the aforesaid material witnesses, the learned Sessions Judge
rightly convicted the accused. Learned Additional State Public
Prosecutor further contended that Exs.P.9 and 10-mahazars
were drawn while recovering M.O.4- shirt and M.O.5-Pant, the
incriminating materials at the instance of the accused. P.W.8-
Chotesab, witness to Exs.P.9 and 10 has supported the case of
the prosecution and therefore, sought to dismiss the Criminal
Appeal.
10. In view of the aforesaid rival contentions urged by the
learned counsel for the parties, the only point that would arise
for our consideration is:
"Whether the Appellant/accused has made out a
case to interfere with the impugned judgment of
conviction and order of sentence, sentencing him
to undergo imprisonment for life and to pay fine
of `10,000/-, in default, to undergo rigorous
imprisonment for a period of one year, for the
offence punishable under Section 376 of the
Indian Penal Code, in the facts and
circumstances of the present case?
CRL.A No. 766 of 2019
11. We have given our thoughtful consideration to the
arguments advanced by the learned counsel for the parties and
perused the entire materials on record, including the original
records, carefully.
12. This Court being the Appellate Court, in order to re-
appreciate the entire material on record, it is relevant to
consider the evidence of prosecution witnesses and the
documents exhibited.
(i) P.W.1-Mehaboob, complainant-father of
the minor victim girl deposed that he filed
the complaint to the jurisdictional police as
per Ex.P.1 and identified M.Os.1-, 2 and 3,
and supported the prosecution case.
(ii) P.W.2-Dr.Mustaq Shariff, Medical Officer,
Shifaa Hospital, deposed that he examined
the child at the first instance and referred
her to the Gynecologist for examination
and Exs.P.3, 4 and 4 were marked, and
supported the prosecution case.
(iii) P.W.3-Zahida, mother of the minor victim
girl narrated the incident and deposed that
the victim girl sustained injuries on her
CRL.A No. 766 of 2019
private part and supported the prosecution
case.
(iv) P.W.4-Devamma, neighbour of the
complainant deposed that when she was
drinking tea in front of her house, the
victim girl came there, she noticed blood
on the legs of the victim girl and she took
the girl to her mother, and supported the
prosecution case.
(v) P.W.5-Dr.Savitha, lecturer, Bowring and
Lady Curzon Hospital attached to
Bengaluru Medical College, deposed that
on 24.03.2001 she examined the victim
girl and noticed scratch mark over the
inter scapular region. She issued Ex.P.6-
certificate stating the presence of evidence
of signs of recent sexual intercourse. The
extract of accident register pertaining to
the victim girl was marked as Ex.P.7, and
supported the prosecution case.
(vi) P.W.6-Nissar Ahmed, Watchman, Hafeeza
High School, deposed that, about one and
half years back, one day morning when he
was sitting in the school compound, the
accused took the girl to the back side of
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CRL.A No. 766 of 2019
the school, and supported the prosecution
case.
(vii) P.W.7-Riyaz, working in mutton shop,
witness to seizure mahazar-Ex.P.8, partly
supported the prosecution case.
(viii) P.W.8-Chotesab, another witness to
seizure mahazar Exs.P.9 and 10. He
identified M.Os.4 and 5 and supported the
prosecution case.
(ix) P.W.9-Siddaramaiah, Police Constable,
deposed that he took the accused for
medical examination. His report was
marked as Ex.P.11 and supported the
prosecution case.
(x) P.W.10-minor victim girl, narrated the
incident and fully supported the
prosecution case. She identified the
accused and stated that he committed
rape on her.
(xi) P.W.11-Dr.Saira Zia, Medical Officer,
Shifaa Hospital, deposed that at 11.30 am
on 19.03.2001, she examined the minor
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victim girl and noticed blood stains on her
private part and supported the prosecution
case.
(xii) P.W.12-Chandramma, women police
constable, deposed that on 24.03.2001
she took the minor victim girl to the
Bowring Hospital for further check up and
supported the prosecution case.
(xiii) P.W.13-C.Vijaya Gopala, Police Inspector,
deposed that on 19.03.2001 he received
complaint from Mehaboob and on the basis
of the said complaint registered a case in
Crime No.54/2001 and conducted
investigation. Ex.P.12-FIR, Ex.P.13-Malu
Patti, Ex.P.14-Police report dated
10.03.2001 were marked and he identified
M.O.6- and M.O.7-tubes. He collected the
samples, traced the accused, recorded the
statement of the accused and P.Ws.2 and
3 and after investigation filed charge sheet
and supported the prosecution case.
13. Based on the aforesaid evidence of the prosecution
witnesses and the material on record, the learned Sessions
Judge proceeded to convict the accused with imprisonment for
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CRL.A No. 766 of 2019
life for the offence punishable under Section 376 of the Indian
Penal Code.
14. P.W.1, father of the minor victim girl reiterating the
complaint averments specifically deposed regarding the rape
committed by the accused on his minor daughter on the
unfortunate day. After coming to know that his daughter was
sexually assaulted, he lodged a complaint with the police. He
indentified M.Os.1 and 2 i.e., green colour chudidar pant and
red colour chudidar top worn by his daughter during the
incident and specifically stated about the sexual assault
committed by the accused on his minor daughter. Nothing has
been elicited by the defense in the cross-examination to
disbelieve the case of the prosecution.
15. P.W.2-Dr.Mustaq Shariff, Medical Officer, Shifaa Hospital,
deposed that he examined the victim minor girl on 19.03.2001
at 11.30 am, brought before him with the history of sexual
assault and injuries. He noted the identification marks of the
child in the accident register and also in the wound certificate.
Thereafter, he referred the child to the Gynecologist for further
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CRL.A No. 766 of 2019
examination. He further deposed that the garments of the
child were collected and the child was immediately taken to the
operation theatre and by giving general anesthesia, the tear in
the vagina was sutured. The child was discharged on
22.03.2001. He opined that injury No.2 is grevious in nature,
and the injuries were fresh and could be caused due to sexual
assault. In the cross-examination, P.W.2 deposed that the
sexual assault will effect the physical and mental condition of
the child and when such an attempt is very grievous one, it
may cause the death of the child also. The victim girl was in
ICU for two days and her condition was critical. If the child was
not brought to the hospital on time, she would have died
because of heavy bleeding and shock. He further deposed that
when the child was in the hospital, her behaviour was normal.
Nothing has been elicited in the cross-examination to disbelieve
the case of the prosecution.
16. P.W.11-Dr.Saira Zia, deposed that since last six years she
is working as Medical Officer at Shifaa Hospital. On 19.03.2001
at about 11.30 am, she examined the minor victim girl. She
identified the victim girl and her parents who were present in
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CRL.A No. 766 of 2019
the Court. She deposed that on examination of the minor child,
she noticed blood stains on her private part, fore arms and
irregular tear over posterior vaginal wall with gaping of
introitus. Nothing has been elicited in the cross-examination to
disbelieve the case of the prosecution.
17. On careful perusal of the evidence of the doctors, it
clearly depicts that the victim girl was subjected to sexual
assault. Apart from the evidence of the doctors, Ex.P.3-In
patient Medical Record depicts that the victim girl was admitted
to Shifaa Hospital and Research Centre, Shivajinagar, Ex.P.4-
wound certificate issued by the said hospital depicts the
following injuries on the victim girl.
(i) blood stains over the perineum, vulva,
vagina and lower limbs;
(ii) irregular tear over posterior vaginal wall
with gaping of introitus.
18. The doctors have opined that the injuries are grievous in
nature. Ex.P.6-the certificate issued by the Bowring and Lady
Curzon Hospital, Bengaluru, which depicts that the victim girl
was examined on 24.03.2001 at 4.45 pm and the local genital
examination of the child revealed that secondary sexual
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characters are not developed, there is a sutured wound of
about 3 cm at the fourchette and the evidence of signs of
recent sexual intercourse is present. Ex.P.15-the Medical
Certificate issued by the Bowring and Lady Curzon Hospital,
Bengaluru, depicts that the accused was examined on
30.03.2001 at 12.30 pm, wherein, the Doctor has opined that,
the accused is aged 35 years, on local genital examination,
evidence of signs of recent sexual intercours is absent and from
the examination of the accused, there is nothing to suggest
that the person is incapable of performing sexual intercourse.
19. Apart from the medical evidence, P.W.6-Nissar Ahmed,
Watchman, the star witness to the present case has specifically
deposed on oath that he has been working as watchman in
Hafeeza School since six years. His house is situated at a
distance of 50 ft from the school. About 1½ years ago, around
7 am when he was sitting in the school compound, he saw the
accused taking the girl child aged about 5 to 6 years to the
backside of the school. After about half an hour, the accused
came by adjusting his pant and went away. 10 minutes later,
the girl child came crying. The dress of the child was blood
stained. By evening he came to know that accused has
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committed rape on the girl child. P.W.6 is the witness who saw
the victim girl in the company of the accused just before the
incident. Nothing has been elicited in his evidence to disbelieve
the case of the prosecution.
20. P.W.10 is none other than the minor victim girl. After
being satisfied that the minor victim girl is capable of
understanding the questions posed to her and answer them,
the learned Sessions Judge recorded her statement. She has
deposed that there is a shop in front of her house. She had
seen the accused earlier. When she went to the shop to take
chocolate, it was closed. At that time, accused called her
holding chocolate in his hand. Then he removed his pant and
that of the clothes of the witness and slept on her. She got
bleeding from the private part. She fell down on the street.
Somebody informed her mother. Later her mother came and
she narrated the act of the accused to her mother. The witness
identified the accused who was present in the Court. In the
cross-examination, the minor victim girl deposed that the
accused committed rape on her. Though she cried, nobody
came. She denied the suggestion that the statement made by
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her before the Court was tutored by her mother. This evidence
of the minor victim girl clearly corroborates the evidence of
other witnesses. Nothing has been elicited to disbelieve her
version.
21. P.W.8-Chotesab, is the witness to the mahazars-Exs.P.9
and 10 under which M.Os.4 and 5 were recovered at the
instance of the accused.
22. On re-appreciation of the aforesaid evidence of the victim
and P.W.6, evidence of the Doctors, and other prosecution
witnesses, it is clear that the accused committed rape on the
minor victim girl aged about 5½ years.
23. The learned counsel for the accused relied upon the
dictum of the Hon'ble Supreme Court in the case of State of
Himachal Pradesh vs. Manga Singh reported in (2019)16
SCC 759 wherein the Hon'ble Supreme Court allowed the
Appeal, set-aside the judgment and order of the High Court
confirming the judgment of the Trial Court sentencing the
accused with imprisonment for ten years for the offence
punishable under Section 376 of the Indian Penal Code. That
was a case where a nine year old girl was raped by her cousin
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CRL.A No. 766 of 2019
and there was no medical evidence or injuries on prosecutrix.
Therefore, it was held that medical evidence and injuries on
prosecutirx is irrelevant in the light of clear and cogent
evidence of prosecutrix and sole testimony of prosecutrix
without corroboration is sufficient. In the instant case, there is
medical evidence, oral and documentary evidence and evidence
of the proseuctrix. The evidence of P.W.6 who saw the accused
and the victim together for the last time clearly establishes the
offence. Therefore, the judgment relied upon by the learned
counsel for the accused will not help him in any manner. But,
on the other hand, it goes against him.
24. Learned counsel for the accused relied upon the judgment
of the Hon'ble Supreme Court in the case of Ashok Debbaram
alias Achak Debbaram vs State of Tripura reported in
(2014)4 SCC 747, (paragraphs 43 and 44), to the effect that
"residual doubt" is not a fact about the accused or the
circumstances of the crime, but a lingering uncertainty about
facts, a state of mind that exists somewhere between "beyond
a reasonable doubt" and "absolute certainty". We have no
quarrel with the said finding wherein the offence is punishable
under Sections 302, 148, 149, 326, 307 and 436 of the Indian
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Penal Code. But, the facts of the said case and the present
case and the materials that are placed before us are different
and therefore, it has no application to the facts and
circumstances of the present case.
25. The unfortunate incident has occurred on 19.03.2001 and
the victim is a minor child. The accused was arrested on
30.03.2021. It is not in dispute that the accused has served
sentence for more than 20 years. As on the date of the
offence, accused was aged 35 years having a wife and two
children. The material on record clearly depicts that there is
possibility of reformation and rehabilitation of the accused, in
the peculiar facts and circumstances of the present case.
26. One of the mitigating circumstances is the probability of
the accused being reformed and rehabilitated. The State is
under a duty to procure evidence to establish that there is no
possibility of reformation and rehabilitation of the accused.
Imprisonment for life ought not to be imposed, save in the
rarest of the rare cases when the alternative option of a lesser
punishment is unquestionably foreclosed. To satisfy that the
sentencing aim of reformation is unachievable, rendering life
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imprisonment completely futile, the Court will have to highlight
clear evidence as to why the convict is not fit for any kind of
reformatory and rehabilitation scheme.
27. Taking into consideration the mitigating circumstances
and the law declared by the Hon'ble Supreme Court, an
opportunity may be given to the accused to reform himself,
since he has already served sentence for 20 years. The
accused is having a wife and two children and as on the date of
the unfortunate incident i.e., on 19.03.2001 the punishment
prescribed for the offence punishable under Section 376 was
imprisonment of either description for a term which shall not be
less than seven years but which may be for life or for a term
which may extend to ten years and shall also be liable to fine.
Admittedly, the case on hand is not the rarest of rare case to
impose the maximum punishment of imprisonment for life.
28. The core notion of the reformative theory is that, "the
sanctions of the criminal law should be used to effect a
transformation in the offender, with the two-fold aim of
protecting society and of enhancing the offender's well-being".
Thus, the reformative theory aims at socialization of the
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offender so that the factors which motivated him to commit
crime are eliminated and gets a chance of leading a normal life
in the society. It is well known that the reformative theory has
been defined as "an effort to restore a man to society as a
better and wiser man and a good citizen.
29. The statement of Victor Hugo that, 'to open a school is to
close a prison' contains a great truth. If persons of doubtful
character are given training or education in such a manner as
to enable them to earn their livelihood by honest means then
they would not need to adopt criminal methods for their
subsistence. Turner puts forward the logic of Carrit who said
"reformative theories forget that if punishment is to be
punishment it must be unpleasant while the cause of
reformative education is only accidentally unpleasant. We
cannot put remorse ready-made into a criminals mind, but we
can stimulate it by giving him a pain akin to that of remorse,
making him feel the indignation of impartial observers. In
rarest of rare case, extreme punishment of imprisonment for
life can be imposed. Therefore, we are of the considered
opinion that sentence has to be reduced.
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30. Considering the fact that the complaint was lodged
against unknown person and accused was arrested on
30.03.2021 and taking into consideration the mitigating
circumstances that the accused is a family holder who has
already incarcerated for sufficient period of time, an
opportunity should be given to reform himself and for
rehabilitation. Our view is fortified by the dictum of the Hon'ble
Supreme Court in the case of Lochan Shrivas vs. State of
Chhattisgarh reported in 2021 SCC Online SC 1249, wherein, at
paragraphs 53, 55 and 56, it is held as under:
"53. This Bench, recently, in the case of Mofil Khan v.
The State of Jharkhand (RP(Criminal) No. 641/2015 in
Criminal Appeal No. 1795/2009 dated 26.11.2021), has
observed thus:
"8. One of the mitigating circumstances is the
probability of the accused being reformed and
rehabilitated. The State is under a duty to
procure evidence to establish that there is no
possibility of reformation and rehabilitation of
the accused. Death sentence ought not to be
imposed, save in the rarest of the rare cases
when the alternative option of a lesser
punishment is unquestionably foreclosed (See
: Bachan Singh v. State of Punjab (1980) 2
SCC 684). To satisfy that the sentencing aim
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of reformation is unachievable, rendering life
imprisonment completely futile, the Court will
have to highlight clear evidence as to why the
convict is not fit for any kind of reformatory
and rehabilitation scheme. This analysis can
only be done with rigour when the Court
focuses on the circumstances relating to the
criminal, along with other circumstances (See
: Santosh Kumar Satishbhushan Bariyar v.
State of Maharashtra (2009) 6 SCC 498). In
Rajendra Pralhadrao Wasnik v. State of
Maharashtra (2019) 12 SCC 460, this Court
dealt with the review of a judgment of this
Court confirming death sentence and observed
as under:
"45. The law laid down by various decisions of
this Court clearly and unequivocally mandates
that the probability (not possibility or
improbability or impossibility) that a convict
can be reformed and rehabilitated in society
must be seriously and earnestly considered by
the courts before awarding the death
sentence. This is one of the mandates of the
"special reasons" requirement of Section
354(3) CrPC and ought not to be taken lightly
since it involves snuffing out the life of a
person. To effectuate this mandate, it is the
obligation on the prosecution to prove to the
court, through evidence, that the probability is
that the convict cannot be reformed or
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CRL.A No. 766 of 2019
rehabilitated. This can be achieved by bringing
on record, inter alia, material about his
conduct in jail, his conduct outside jail if he
has been on bail for some time, medical
evidence about his mental make-up, contact
with his family and so on. Similarly, the
convict can produce evidence on these issues
as well.""
55. In view of the settled legal position, it is our
bounden duty to take into consideration the probability
of the accused being reformed and rehabilitated. It is
also our duty to take into consideration not only the
crime but also the criminal, his state of mind and his
socio-economic conditions.
56. The appellant is a young person, who was 23 years
old at the time of commission of the offence. He comes
from a rural background. The State has not placed any
evidence to show that there is no possibility with respect
to reformation and the rehabilitation of the accused. The
High Court as well as the trial court also has not taken
into consideration this aspect of the matter. The
appellant has placed on record the affidavits of
Leeladhar Shrivas, younger brother of the appellant as
well as Ghasanin Shrivas, elder sister of the appellant. A
perusal of the affidavits would reveal that the appellant
comes from a small village called Pusalda in Raigarh
district of Chhattisgarh. His father was earning his
livelihood as a barber. The appellant was studious and
hardworking. He did really well at school and made
consistent efforts to bring the family out of poverty. The
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conduct of the appellant in the prison has been found to
be satisfactory. There are no criminal antecedents. It is
the first offence committed by the appellant. No doubt,
a heinous one. The appellant is not a hardened criminal.
It therefore cannot be said that there is no possibility of
the appellant being reformed and rehabilitated
foreclosing the alternative option of a lesser sentence
and making imposition of death sentence imperative."
31. Though we tried to get the information regarding
whereabouts of the victim girl, learned Additional State Public
Prosecutor, on instructions, submits that the family of the
victim girl is not residing in the locality. By now, the girl must
be aged about 25 years. Admittedly, the accused is having a
wife and two children. Taking into consideration the mitigating
circumstances and the fact that the family of the accused is
starving and the fact that the accused has served sentence for
20 years and there is possibility of reforming and rehabilitating,
the sentence needs to be reduced.
32. The Hon'ble Supreme Court has declared that the
principles for sentencing and proportionality/balancing of
aggravating and mitigating circumstances have to be taken into
consideration while imposing imprisonment for life. Our view is
fortified by the dictum of the Hon'ble Supreme Court in the
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case of State of M.P. -vs- Suresh reported in (2019)14 SCC
151, wherein, at paragraphs 13 and 14 it is held as under:
"13. Therefore, awarding of just and adequate
punishment to the wrongdoer 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
wrongdoer as also of the victim of the crime and the
society at large. No straitjacket 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
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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."
33. Taking into consideration all the facts and circumstances,
we are of the considered opinion that the accused has made
out a case to interfere with the impugned order of sentence for
the offence punishable under Section 376 of the Indian Penal
Code.
34. For the reasons stated above, the point raised for
consideration in the present Appeal is answered partly in the
affirmative holding that the accused has made out a case to
interfere with the impugned order of sentence and modify the
same.
35. In view of the above, we pass the following:
ORDER
(i) The Criminal Appeal is allowed in part.
(ii) The impugned judgment of conviction dated
01.08.2002 made in S.C.No.440/2001 on the file of
the X Additional Sessions Judge, Bengaluru City
(CH No.26) is hereby confirmed and Order of
Sentence is modified.
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(iii) The appellant/accused is sentenced to undergo
imprisonment for a period of ten years and to pay
fine of `25,000/-, in default, to undergo further
imprisonment for a period of two years, for the
offence punishable under Section 376 of the Indian
Penal Code.
(iv) The appellant/accused is entitled to the benefit of
set off under Section 428 of the Code of Criminal
Procedure.
(v) Exercising powers under Section 357(3) of the Code
of Criminal Procedure, out of the fine amount of
`25,000/-, `20,000/- is ordered to be paid either to
the victim or her parents and the remaining amount
of `5,000/- shall vest with the State Government
towards defraying expenses.
(vi) The judgment is passed taking into consideration
the peculiar facts and circumstances of the present
case and it shall not be treated as precedent to any
other case.
Sd/-
JUDGE
Sd/-
JUDGE
kcm
