IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CRA-S-287-SB-2005
Date of decision: 4.05.2018
Inder Sain alias Nikku
…Petitioner
Versus
State of Punjab
…Respondent
CORAM: HON’BLE MS. JUSTICE JAISHREE THAKUR
Present: Mr. H.S. Diwana, Advocate, and
Mr. N.S. Diwana, Advocate,
for the appellant.
Mr. I.P.S. Doabia, Addl. A.G., Punjab.
****
JAISHREE THAKUR, J.
1. The instant appeal has been filed seeking to challenge the
judgment dated 24.12.2004 whereby the Addl. Sessions Judge, Patiala has
convicted the appellant under Sections 366 376 IPC and sentenced him to
undergo rigorous imprisonment for five years with fine of ` 5,000/- for offence
under Section 366 IPC and ten years with fine of ` 10,000/- for offence under
Section 376 IPC.
2. In brief, the facts are that a complaint was registered at the behest
of the mother of the prosecutrix wherein she stated that on 02.07.1992 at about
12.30 p.m. her daughter came home crying and on enquiry has told that the
accused had taken her to Khola in that vicinity on the pretext of lighting dhoop
there. He broke the elastic of her underwear, opened the zip of his pant and put
his private organ into her private organ after making her to lay down on the
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ground. The matter was immediately reported to the police and a medical
examination of the prosecutrix was done and in the opinion of the doctor the
young prosecutrix had been raped. After registration of the case, the police
arrested the accused-appellant and on completion of investigation, challan was
presented.
3. Copies of the documents as required under Section 207 Cr.P.C.
were supplied to the accused and on perusal of the report presented under
Section 173 Cr.P.C. a prima facie case under Section 366 376 IPC was made
out against the accused and he was accordingly charge-sheeted, to which he
pleaded not guilty and claimed trial.
4. In support of the case, the prosecution examined PW-1
Dr. Arvinder Kaur, PW-2 Dr. P.D. Sharma, PW-3 Chanchal Rani, PW-4 Prem
Chand and PW-5 SI Gurcharan Singh. The prosecutrix being of tender age and
on account of the fact that she got stunned in the Court after answering some
questions, was not examined and notings were made to this effect.
5. The statement of the accused was recorded under Section 313
Cr.P.C., wherein he denied all the allegations and pleaded innocence and in his
defence he examined DW-1 Gian Chand and DW-2 Gokal Chand.
6. The appellant was acquitted of the charges framed against him by
judgment dated 27.02.1993 but against the order of acquittal, an appeal was
preferred before the High Court bearing Criminal Appeal No. 309 DBA of
1993. On appreciation of the evidence, the High Court in Division Bench set
aside the judgment and the matter was remanded back on 05.07.2004 to the
Sessions Court to decide the case in accordance with law. The appellant,
thereafter preferred Special Leave Petition before the Supreme Court bearing
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CRIMP No. 11134 of 2004 challenging the remand, which was dismissed vide
judgment dated 16.11.2004. The Addl. Sessions Judge after hearing the case
afresh held that the Division Bench of the Punjab and Haryana High Court in
its judgment dated 05.07.2004 convicted the appellant for an offence under
Section 376 IPC by taking note of the fact that it was proved on the file, the
accused had kidnapped the prosecutrix to take her to the khola where he
committed the offence of rape and accordingly pronounced the sentence of five
years and fine of ` 5,000/- for the offence under Section 366 IPC and ten years
and fine of ` 10,000/- for an offence under Section 376 IPC.
7. Learned counsel appearing on behalf of the appellant does not
press the appeal on merits, but prays for leniency and reduction of the sentence
so awarded on the ground that the appellant has already faced the agony of
protracted trial for 25 years. It is argued that accused-appellant has a right of
speedy trial under Article 21 of the Constitution of India and, therefore, there
should be reduction in the sentence so awarded to the period already
undergone by him. In support of his argument, he places reliance upon Behari
Lal vs. State of (U.T.), Chandigarh, 2001(1) RCR (Crl.) 223 (PH), Harjit
Singh vs. State of Haryana, 2001(1) RCR (Crl.) 311 (PH) and Mohan Lal
vs. State , 2001(2) RCR (Crl.) 20, Delhi High Court.
8. Per contra, Mr. I.P.S. Doabia, learned Additional Advocate
General Punjab appearing on behalf of the respondent-State submits that the
appellant herein has been convicted under Sections 366 and 376 IPC which is
a heinous crime. In fact, the prosecutrix was of a tender age of six years and
medical evidence on the record would substantiate that the offence had been
committed upon her. It was argued that the appellant herein had appealed
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against the judgment rendered by the High Court setting aside the acquittal by
the Addl. Sessions Judge which too has been dismissed and, therefore, in the
special circumstances of the instant case there is no ground made out for
reduction of the sentence.
9. I have heard learned counsel for the parties and with their
assistance have perused the record of the case.
10. Learned counsel for the appellant does not impugn the judgment
holding the appellant guilty of the charges framed under Sections 366 376
IPC, but prays for leniency and reduction of sentence to one already
undergone. As regards the question of reduction of sentence, the judgment
referred to by counsel for the appellant i.e. Behari Lal case (supra) pertains to
a case under Preventon of Food Adulteration Act, 1954, where the Single
Judge reduced the sentence imposed upon the appellant therein to one already
undergone on account of the mitigating circumstances that the petitioner has
undergone the agony of the protracted trial for more than 15 years while noting
judgments in Chander Bhan v. State of Haryana, 1996(1) Recent Criminal
Reports 125, wherein it has been held that “an accused has a right of speedy
trial under Article 21 of the Constitution of India”. Similarly, in Harjit Singh’s
case (supra) it was held that the accused had faced trial for 8 years and the
sentence was reduced to already undergone. In another matter, the Delhi High
Court in Muna Lal case (supra) also reduced the sentence to one already
undergone as the appellant had been facing trial and prosecution for more than
24 years.
11. Rape is a heinous offence which not only leaves physical scars
upon a woman/child but also has a deep psychological impact upon her mental
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well being, scaring all her life. The victim, looses her sense of self-worth and
dignity which is difficult to compensate in the long run. Not only is there
physical and mental scaring, there is also a stigma attached to the victim for no
fault of her’s.
12. The question regarding reduction of sentence in a rape case, came
up for hearing in a judgment rendered in State of Rajasthan vs.Vinod Kumar,
2012(6) SCC 770, wherein the accused persons were convicted and sentenced
to 7 years each by the trial Court, which is minimum sentence prescribed under
Section 376 IPC. The High Court reduced the sentence of one of the accused to
one already undergone (11 months 25 days) on the ground that he had not
himself committed the rape, but had only accompanied the co-accused. The
High Court reduced the sentence by observing that it was a fit case for
reduction of the sentence. The Supreme Court set aside the order and restored
the order of the trial Court by holding that no such special reasons have been
set out to reduce the sentence while further holding that deciding the case in
such a casual manner reduces the criminal justice delivery system to mockery.
The Hon’ble Supreme Court in State of Rajasthan v. Vinod Kumar case
(supra) while dealing with a judgment of awarding of lesser punishment held
as under :-
“19. Awarding punishment lesser than the minimum
prescribed under Section 376 IPC, is an exception to the
general rule. Exception clause is to be invoked only in
exceptional circumstances where the conditions
incorporated in the exception clause itself exist. It is a
settled legal proposition that exception clause is always
required to be strictly interpreted even if there is a hardship
to any individual. Exception is provided with the object of5 of 9
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CRA-S-287-SB-2005 -6-taking it out of the scope of the basic law and what is
included in it and what legislature desired to be excluded.
The natural presumption in law is that but for the proviso,
the enacting part of the Section would have included the
subject matter of the proviso, the enacting part should be
generally given such a construction which would make the
exceptions carved out by the proviso necessary and a
construction which would make the exceptions unnecessary
and redundant should be avoided. Proviso is used to
remove special cases from the general enactment and
provide for them separately. Proviso may change the very
concept of the intendment of the enactment by insisting on
certain mandatory conditions to be fulfilled in order to
make the enactment workable. (Vide: S. Sundaram Pillai,
etc. v. V.R. Pattabiraman, AIR 1985 SC 582; Union of
India Ors. v. M/s. Wood Papers Ltd. Anr., AIR 1991
SC 2049; Grasim Industries Ltd. Anr. v. State of Madhya
Pradesh Anr., AIR 2000 SC 66; Laxminarayan R.
Bhattad Ors. v. State of Maharashtra Anr., AIR 2003
SC 3502; Project Officer, ITDP Ors. v. P.D. Chacko, AIR
2010 SC 2626; and Commissioner of Central Excise, New
Delhi v. Hari Chand Shri Gopal Ors., (2011) 1 SCC
236).
20. Thus, the law on the issue can be summarised to the
effect that punishment should always be
proportionate/commensurate to the gravity of offence.
Religion, race, caste, economic or social status of the
accused or victim are not the relevant factors for
determining the quantum of punishment. The court has to
decide the punishment after considering all aggravating
and mitigating factors and the circumstances in which the
crime has been committed. Conduct and state of mind of6 of 9
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CRA-S-287-SB-2005 -7-the accused and age of the sexually assaulted victim and
the gravity of the criminal act are the factors of paramount
importance. The court must exercise its discretion in
imposing the punishment objectively considering the facts
and circumstances of the case. The power under the
proviso is not to be used indiscriminately in a routine,
casual and cavalier manner for the reason that an
exception clause requires strict interpretation. The
legislature introduced the imposition of minimum sentence
by amendment in the IPC w.e.f. 25.12.1983, therefore, the
courts are bound to bear in mind the effect thereof. The
court while exercising the discretion in the exception clause
has to record “exceptional reasons” for resorting to the
proviso. Recording of such reasons is sine qua non for
granting the extraordinary relief. What is adequate and
special would depend upon several factors and no straight
jacket formula can be laid down.”
13. In State of Haryana vs. Janak Singh etc. 2013(9) SCC 431,
the accused was convicted for offence punishable under Section 376 IPC and
sentenced to undergo rigorous imprisonment for 8 years. Before the High
Court, the counsel for the accused did not press the appeal on merits but
submitted that since he had undergone more than 2 years of actual sentence
and that being only bread earner for their family, prayed for reduction of the
sentence to one already undergone. The Apex Court while taking note of the
fact that the offence of rape being a heinous one held that the High Court could
not have reduced the sentence which is below the minimum prescribed by law
and the High Court could have done so only if it felt that there were extraneous
circumstance by giving reasons there under. It was held that sentence remission
is impermissible in a serious offence like rape.
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14. Learned counsel for the appellant herein is not pressing for having
the conviction set aside, but only prays for reduction of the sentence to one
already undergone which as per the custody certificate is of 05 years, 09
months and 04 days out of 10 years. As per the judgment relied upon by
counsel for the appellant, the accused appellant is entitled to a reduction of
sentence to one already undergone on the ground that there has been protracted
trial.
15. However this court is not inclined to grant the relief as sought. It
can not be lost sight of the fact that the victim was only 6 years old at the time
of the offence and the medical examination conducted read with the statement
of the doctor would clearly substantiate that the offence has been committed.
The medical as conducted was as under :-
“From the Local Examination of Minu Rani, I found that
her valva was swoolen. There were marks of injuries on
valva. ‘Four sheatte’ was found torn. There was oozing of
blood from the injuries in the vagina. On examination
per Vaginal Examination was very tender. Uteris
infantile and of small size, 2 sticks swabs were taken
from the Vagina and were sent for the Chemical
Examination…..”
16. The defence as set up by the accused appellant has been
disbelieved that he has been falsely implicated as he was in love with the
sister of the mother of the victim and that was not to the liking of the family.
17. The sentence for having committed the offence of rape has been
specified in Section 376 IPC which is punishable with imprisonment of
either description for a term which shall not be less than seven years but
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which may be for life or for a term which may extend to ten years. Proviso
to Section 376(1) states that the Court may, for adequate and special reasons
to be mentioned in the judgment, impose a sentence of imprisonment for a
term of less than seven years. Thus, a minimum of seven years sentence is
provided under Section 376(1) of IPC. However Section 376(2) provides for
a more stringent punishment for since it also takes into account the special
features indicated in the said sub-Section. The punishment so awarded shall
be for a term which shall not be less than ten years but which may be for
life. Proviso to Section 376(1) states that the Court may, for adequate and
special reasons to be mentioned in the judgment, impose a sentence of
imprisonment for a term of less than ten years. In case the courts are so
inclined the same can be reduced but there have to mitigating and
compelling reasons for doing so.
18. The present case is covered by Section 376(2)(f) IPC i.e. when
rape is committed on a victim when she was 6 years of age and the sentence
of ten years was rightly imposed on appreciation of evidence. Finding no
merit in the instant appeal, the same is dismissed. The appellant is directed
to surrender and serve his remaining sentence.
4.05.2018 (JAISHREE THAKUR)
Satyawan JUDGE
Whether speaking/reasoned Yes.
Whether reportable No.
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